Litigation in Romania

by Will Newman

The Romanian legal system shares many attributes with other European civil law systems. But it has a unique system of constitutional review and challenges that arise from the country’s communist past. I haven’t had the chance to visit the country, but I was fortunate enough to speak with Alexandru Măglaș, an attorney at his own firm in Bucharest, to learn about what litigation is like in Romania.

Why should you continue reading this post about litigation in Romania?

  • You’re interested in the perspective of a general practitioner who handles many different types of cases.

  • You’re representing a client in a lawsuit in Cluj, but you need to know whether you need to wear a special robe.

  • You are a blog enthusiast who just likes reading posts.

Alexandru Măglaș is an attorney at his own firm in Bucharest.

Can you tell me about the kinds of disputes you handle in your legal practice? 

My practice is divided between: 

In Romania all lawyers can register in the public defense registry and receive criminal cases. 

As for my own legal practice, I mostly handle criminal matters, companies’ law matters, family matters, administrative and fiscal matters (under Romanian law, fiscal law is based on administrative law with plenty of special provisions) and intellectual and industrial property issues. 

Pârvu & Associates Law Firm has a general practice and handles all sorts of legal issues.  In collaboration with them, I usually handle cases that mostly involve the same fields of law as those handled in my own legal practice.

As a public defense attorney, I handle mostly criminal cases on various charges ranging from battery, possession of drugs, rape to homicide, tax evasion, blackmail, and others. However, as a public defense attorney you may be assigned non-criminal matters also.

What type of clients do you generally represent in disputes?

I represent and assist mainly individuals, but there are instances where I represent and assist business entities of all sorts also.

Besides Microsoft Office, what software do you use in your practice? 

Currently I am using, among other software:

What books and websites do you use for legal research? 

For relevant local case-law and legislation I am using Sintact software and rolii.ro.

 I use numerous other websites for research, as for example:

And these are examples of books and magazines that I may currently use:

Image credit: https://en.wikipedia.org/wiki/High_Court_of_Cassation_and_Justice#/media/File:Bucharest_-_Supreme_Court_02.jpg

Do you electronically file pleadings with the court?  Or must you send paper copies of them to the courthouse?

There is no central system for filing documents with Romanian courts.

But sending pleadings electronically can be done via e-mail to the court’s e-mail address. And there are certain courts that allow sending documents via an internet portal, such as https://ca-iasi.ro/index.php/main/view/upload_files - but this link is only for the Iast Court of Appeals and its inferior courts.  

However, it is highly recommended to file procedural documents and evidence as paper copies as the main means of communication with courts – electronic filing is used in order for the documents to reach the court before they arrive physically. 

Does Romania have specialized courts that only hear commercial cases? 

There are some specialized commercial courts in Romania – from my knowledge there are three: The Argeș Specialized Court; The Cluj Specialized Court; and The Mureș Specialized Court.

Also, there are courts that have specialized departments for commercial matters and/or for insolvency cases. 

However, there numerous courts that do not have specialized departments for such cases. It depends on the demand in the area covered by the court and if specialized judges are available.

Who decides the facts in a commercial case?  Is it a judge or a jury? 

A judge decides the facts. Currently, there are no jury courts in Romania.

Generally speaking, how many pages are the complaints or initial pleadings you see in your work?

Complaints or initial pleadings range from 3-4 pages to 20-30 or even 50-100 in very complex matters. The largest document that I sent to a court so far was about 60-70 pages, but I have seen larger documents that were filed by other attorneys.

I understand that Romania has a separate constitutional court.  Does it ever hear commercial cases?  Are parties able to raise constitutional arguments in commercial disputes?

The Constitutional Court of Romania hears only constitutional matters that may rise from commercial cases.

Individuals cannot file constitutional cases directly with The Constitutional Court of Romania. If constitutional matters are raised during commercial matters, the judge of the commercial matter may file a case with the constitutional court regarding the constitutional matters raised and it will be solved independently of the pending commercial matter.

If the constitutional matter is filed with The Constitutional Court of Romania, then the parties of the commercial matter may participate to the proceedings of The Constitutional Court of Romania.

Generally speaking, how long does it take for a case to go from complaint to judgment?

It depends on the value and complexity of the case and the elected means of procedure.

For small matters, a case may be resolved by the trial court in 6-9 months. 

For the average civil or commercial case, it is not uncommon for the trial court to take about 1-2 years to resolve the case.

Complex cases may take more than 2 years to be resolved by the trial court.

Obtaining a final award may take years if the trial court’s award is appealed. In rare instances, it may take even 10 years or more for a final award to be rendered in a dispute.

Generally speaking, how is evidence exchanged between the parties before trial?  Do you get to interview the opposing witnesses before the trial?

The only recognized way of exchanging evidence is through the courts. In civil cases, the complainant files with the court the necessary number of copies of its evidence for the court and for all defendants. And in criminal matters, the parties study the prosecutor’s or court’s file to obtain the evidence.

On rare occasions, the lawyers for opposing parties involved in a negotiation may vaguely disclose what kind of proof they have on hand, but that is always done as part of the negotiation strategy and not as a procedural means to avert litigation.

Usually, opposing witnesses are not interviewed before the trial. Theoretically, it is possible, but it is highly frowned upon as criminal charges may be incurred for attempting to influence witnesses. 

If you win, does the other side reimburse your attorneys’ fees?

In theory, if all the complainant’s demands are admitted by the court, the complainant is entitled to all the costs incurred.

In practice, the courts have the legal power to limit the amounts awarded as legal fees if they deem them as unreasonable or if the court deems that the complainant incurred more costs than it should.

Usually, judges try not to transform the imposition of legal fees as an additional punishment on the losing party. For example, companies use legal fees as a way to discourage labor-related litigation and the courts are aware of such practices and drastically cut any legal expenses in such situations.  

Are the courts in Romania open to the public?  Can ordinary people watch a commercial trial?

The rule is that trials are public. However, judges may declare certain cases non-public.

Do you believe that Romanian courts have a particular strength for resolving commercial disputes?  How about a weakness?  What are they? 

As I do not usually handle commercial disputes, I kindly asked attorney Theo Pârvu, partner at Pârvu & Associates Law Firm to help me with an answer for this question:

It is quite complicated to identify any strong points the Romanian courts have. Basically, commercial law is still in its early stages in Romania, as during the communist period, this side of the Romanian law was almost non-existent and a very peculiar version of commercial law typical for the communist bloc was in use.

Thus, there is no historical experience with commercial legal institutions and for an American things will be obvious from the start, as for example cheques are rarely used. Also, commercial contracts tend to be very short and only cover general aspects and not the exact particulars of the commercial situation.

So, there is no in-depth knowledge of commercial matters and how they work, and lawyers always have a hard time explaining complex commercial transactions. 

In short, commercial litigation is not a strong point of the Romanian legal system. 

How often do you go to the courthouse? 

It varies. There are months when I do not go to courthouse — mostly during July and August, when there is judicial vacation, when only urgent matters (such as criminal proceedings where the defendants are under arrest, protection orders, appeals against forced executions, and others) are judged. There are also months when I attend 10-15 hearings — sometimes, even 3-4 in a week.

In Romania, a typical day in court means that a judge has maybe 30-50 cases to hear that day. As a result, only a procedural step is taken during that hearing and rarely the entire case is heard in one hearing.

Between hearings you may have 3-5 weeks or even more. A normal commercial case may have between 2-6 hearings, depending on the complexity of the evidence to be considered. Also, if expert opinions need to be heard, it is not unusual for a case to have more than 20 hearings before a judgement is rendered.

When you are there, do you need to wear a special robe or wig?

When pleading in front of the court, you are required to wear a special robe.

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