Note on how the national courts will reason upon the requests for additional evidences in appeal when the Suspension of civil procedures due to COVID-19 crisis will cease and the activity in courts will be resumed.

Good news from the High Court of Romania! Even though most of the civil cases are suspended ex officio throughout the state of emergency instated by the Decree no. 195/16.03.2020, the High Court ruled on the 30th of March, in an appeal on a point of law procedure (in Romanian: “Recurs în interesul legii”) that will certainly be of interest after the suspension period is over.

Although the arguments of the court have not yet been issued, the ruling was announced through a press release. According to art. 517 par. 3 of the Civil Procedure Code, the court must issue the reasoning of the judgement within 30 days after the decision was rendered. After it is published in the Official Gazette, the decision will be mandatory for all the courts in Romania.

According to the press release, the court decided that:

“In order to interpret and give a unitary application to the provisions of art. 470, art. 478 par. (2) and art. 479 par. (2) of the Civil Procedure Code, with reference to art. 254 paras. (1) and (2) of the Civil procedure code, the notion of new evidence that can be proposed and allowed in the appeal phase includes the evidence that were proposed in front of the first court through the request or through the statement of defense, as well as the evidence that were not proposed in front of the first court or that were proposed past the time-limits, and in regards to which the court decided to deny them for this reason.”

The High Court was referred with the request to render a decision on a point of law regarding this procedural issue by the Cluj Court of Appeal which found that in the case law there are two different opinions regarding this matter:

  1. The notion of “new evidence that can be allowed in the appeal procedure” includes the evidence proposed in front of the first court that were denied by the court for being inadmissible as well as the evidence that is first referred to in the request for appeal or in the statement of defense to the appeal. Even more so, the evidence that were proposed past the time-limit, and therefore denied by the first court, are admissible;
  2. Contrary to the first opinion, not any evidence can be proposed in the appeal procedure, but only those that could not be proposed in front of the first court, the ones denied by the first court or the ones that the first court omitted to take into consideration. This opinion was nuanced by some courts which found that new evidence can be proposed in the appeal procedure only if this does not result in a delay of the procedure or only if the first court did not rule that the party is time-barred from proposing that evidence.

As the Cluj Court of Appeal found, this decision was necessary in order to settle the matter in a way or another, as the different interpretations of the notion of “new evidence that can be allowed in the appeal procedure” differed even between divisions of the same court.

The decision taken by the High Court can be translated as follows:

  • new evidence can be proposed in the appeal procedure irrespective of the fact that they could have been proposed in front of the first court;
  • even if the first court finds that a party is time-barred from proposing certain evidence, those evidence can be proposed in the appeal procedure.

The decision will be saluted by some of the participants in the judiciary procedures as it can be considered that the points raised in this judgment reinforce the right to a fair trial as it is defined in art. 6 of the European Convention on Human Rights.

However, some parties may abuse this right by deliberately not proposing evidence in accordance with the procedural law in order to surprise the opposing party in the appeal procedure or even to obtain a re-trial in front of the first court or to delay the proceedings. In this case, due consideration should be given to the provisions of art. 12 of the Civil Procedure Code which provides that a party which exercises its procedural rights in an abusive manner is liable for the material and moral damages caused.

All things considered, we have the belief that this decision will contribute to the other guarantees for a fair trial and we are confident that the courts will sanction any abusive use of the procedural rights.