|
|
[ccje2005/docs/CCJE(2005)1e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THEME
“JUSTICE AND SOCIETY”
Reply submitted by
the delegation of Romania
A.1
The information of public/justice users is accomplished on different ways according to specific data that are afforded, as follows:
- Publishing (on disks/compact disks or on paper) of the legislation and the administrative provisions;
- Publishing of the decisions pronounced by the different level courts;
- Publishing of the Constitutional Court`s decisions (concerning the conformity of the different provisions with the constitutional provisions);
- Publishing the commentaries in mass media about the effective legislation or the legsilative process;
- The information afforded by “the judges on duty” who existent in all courts. The “judge on duty” provides, at the time when justice users submit the request to the court, all information with reference to the documents that have to be submitted and the stamp duty/judicial stamp;
- Advising the parties of the case, before the first term of judgment, with reference to their duties;
- The internet sites of the ministries/courts through the mediation of there are afforded information about their actual and future activity, organizational structure, services (e.g. Ministry of Justice, High Court of Cassation and Justice);
- Publishing of commentaries (doctrine, teaching) and jurisprudence in the speciality magazines, even for every discipline of law.
A.2
The above-mentioned possibilities of information are available to any public category/citizen.
A.3
The decisions (in extract – only the enacting-term or the whole decision) are available through the decisions tomes that are published on disks/compact disk, on paper or through the different softwares (legislation/jurisprudence).
The latter possibility (softwares) could be considered the version which is preponderantly used by specialists, but the subscribing to these softwares – in order to get update information – is available for any interested person.
Regarding to “correctness” of information provided this way, we appraise it is implicit because these softwares transcribe decisions per se and not commentaries about them.
A.4
Concerning the contact of pupils/students with judiciary system, it could take place at request and it especially happened within the framework of specialized colleges.
A.5
The programmes/conferences/seminars are organized especially for the specialists (judges / prosecutors / representatives of public administration / lawyers).
B.1
Concerning the preparation of the specialists (judges/prosecutors/lawyers) to the effect of facilitating the justice users`s access to the justice and of creating a „positive” image of the justice and, in this case, of the „judgment procedure”, it is accomplished by tools which are at the latitude of the courts management (e.g. meeting of the divisions/magistrates of the court) with the support of the administrative management – Ministry of Justice.
Also, it is entailed to notice the role of the lawyers to instruct the parties who they give legal aid, to the effect of presenting the way judgment will evolve.
As regards the information which are given to the justice users by the judges who receive the petitions/actions and, also, by the administrative personnel of the court, the information are circumscribed to a restricted area – especially regarding the magistrates – quite towards their attitude not to be considered as an assumption of the role of the lawyers and in order to maintain a preponderant impartial and equidistant position of the magistrates without falling in the opposite extreme characterized by opacity and inaccessibility.
At the request of the persons who have not the necessary financial possibility for hiring a lawyer, the bars may, in substantiated situations, to put the ex officio lawyers at the disposal of these persons (for any kind of case).
B.2
As we mentioned in the final of B.1, the social categories characterized by some specific problems/needs are subjects of gratis legal aid.
With reference to the training programmes for magistrates and personnel of the courts, these categories participate to the conferences/preparation times which are organized in order to guarantee the transparency of the justice and the effective approach by justice users.
C.1
In order to establish some relations between court and justice users, as much as possible directly, and which, in the same time, do not affect the impartial character of the courts, there are public relations offices within the courts where audiences are periodically afforded according to a pre-established time table and, also, outside this time table in emergency cases the direct contact with the judge is provided at the start of the judicial procedure when the action is submitted; it proceeds in the same manner at the time of submitting any other request regarding the services/activities accomplished by the court and in order to achieve the interests of the parties in the case.
The justice users are advised not only through the discussions with the magistrates, but also through the information which are put up at the location of court regarding the most used procedures and requests which can be submitted.
The information can be obtained through the accessing of the websites of the courts if they exist.
C.2
Although, as it come out from the previous answer, we could not talk about „time table” in the restricted means of the term; there are intermediate relations and also direct relations between the personnel of the courts and the justice users/public/lawyers who are the subjects of the above mentioned relations.
C.3
With reference to the public/secret feature of the judgment procedure, it is needed to make difference between criminal cases and civil cases.
So, for criminal cases, the Criminal Procedure Code provides, as principle, the secret feature of criminal investigation to the effect of implying in this period only the persons between who there were established relations of the criminal substantial/procedural law.
However, in the cases of maximum interest for the public, the spokesmen of Public Ministry sometimes give information about some aspects of the investigation on course, as well as the lawyers of the parties do (the information afforded by the lawyers are much more comprehensive).
In the period of the judgment of a criminal case, court sessions are public, except for cases which are expressly provided by law (article 290 of Criminal Procedure Code).
Regarding the civil cases, court sessions are public, except for the cases which are provided to be judged in „The Council Chamber”, therefore with the exclusive participate of the parties, the counsels of the defence and the court.
With reference to the access to the documents existent in the files of criminal investigation/judgment, it is restricted to the parties/witnesses/counsels of parties before and after the judgment. Connected with the obtaining of information about the identity of parties/witnesses, it is accomplished according as the publicity of the courts sessions is ensured.
C.4
The Convention was ratified by Romania through Law No.682/2001.
Regarding the recommendations, there is accomplished a harmonization of their provisions with the effective legislation in order to reconcile the person`s right to information with the person`s right to image/private life/security.
C.5
The publicity is the rule regarding the court sessions, while the secret sessions, in the cases mentioned by article 290 of Criminal Procedure Code, are provided with character of exception.
The access of the mass media to information is accomplished between these limits.
As to the spokesmen, they exist at the superior courts (tribunal, court of appeal, High Court of Cassation and Justice) and they are magistrates. These are the persons who ensure the affording of information and who therefore express the point of view of the magistrates of the court. The offices for public relations are organized in the same courts in order to afford nonjudicial information.
C.6
The presence of the cameras in court rooms and the video taping are allowed in the conditions of existence the acceptance of the party who will be video taped in order to ensure the party`s right to image.
The same rule is also applied in criminal cases with arrested defendants.
C.7
Romanian Criminal Code regulates the offence of calumny and insult, both through which is damaged person’s reputation (articles 205, 206 of Criminal Code), with mention that for the offence of insult (article 205 of Criminal Code) the punishment is the fine and for the offence of calumny (article 206 of Criminal Code) the punishment is imprisonment in alternation with fine penalty. The offence of calumny is punished with imprisonment between 3 months and 3 years or with a fine and the offence of insult is punished with imprisonment between one month and 2 years or a fine.
With reference to the sanctions applied in practice, the most frequently applied sanction is criminal fine penalty (criminal fine penalty constitutes charge sheet) or one of the administrative sanctions provided by article 181 of Criminal Code. The law provides the sanctions without distinguishing according as the quality of the defendant (in this case, journalist or not). The limits of the responsibility according as the quality of the defendant are not regulated by law (the responsibility is the same for any person except the cases of indemnity).
The protection of the private life is realized through considering as offences (articles 205, 206) the deeds through which is damaged person’s dignity/reputation.
The Criminal Code which will take in force at 29th June 2005 regulates only the offence of calumny, without still regulatting the offence of insult. The punishment for the offence of calumny is “days-fine penalty” between 10 and 120 days and a day-fine penalty is evaluated from 100.000 lei to 1.000.000 lei (roughly from 2.5 euro to 25 euro).
C.8
It is ordinary that the manner of action and the behaviour of representatives of the mass media (newspapers) have to situate within the limits of decency and reasonableness without being damaged or infringing the profession ethics. On the other hand, a deed is considered as offence or misdemeanour after the concrete damaging of the value protected by law through regulating such of deeds by the criminal law.
The Criminal Code provides, in the same Chapter IV „Crimes against dignity”, article 207, the evidence of the truthfulness of the statements, following that will not be considered as offence of insult the deed for which the evidence was done and which was performed for the defence of a legitimate interest.
With reference to „simple opinions”, they have, whoever is the „emitter”, not to overreach the limits which were general agreed and imposed through the rules of cohabitation. We mention that for both offences regulated by the Romanian legislator through Criminal Code, the criminal action commences at the prior complaint of the injured person, who is the only one who may decide if want that the author will be subject to penal responsibility.
If the written statements derive from a „qualified source”, official source, we consider that it is opportune to quote per se the affirmations of the „source” for a clear delimitation by the opinions of the person who quotes them. Therewith, the affording of information regarding the development of the criminal examination/investigation is secondary to secret character of this information.
Regarding the magistrates` relations with the mass media, they are realized through the spokesmen of the courts/offices for public relations.
C.9
The damages allowed by the criminal courts within the judgment of the civil part of the criminal case vary according to the seriousness of the damages which have been bring on to person`s dignity/image, such as these were proved within the judgment. Concerning the social status of the injured person, it could be a criterion for establishing the seriousness of the offence which was committed and, consequently, of the moral and material prejudices which were allowed by court.
C.10
In the conditions under which the false statements are afforded in a manner which bring to the conclusion of the existence of material element of the offences of insult or calumny and there is a prior complaint of the injured person, the posterior rectification of the mentioned data does not cancel criminal responsibility, but the behaviour of the defendant after committing the deed can constitute, under the provisions of article 74 letter b) from Criminal Code, extenuating circumstance which leads to diminution of penalty and also can act on civil side of the case.
C.11
The effective Criminal Code provides the special seizure as security measure (article 118 Criminal Code), but courts enforce, as a rule, the fine penalty without establishing other measures.
Connected with the „censorship” of materials which were put about, this is, in ordinary limits, ought, one of the domestic problems of the emitter of information (the editorial office of the newspaper/the news room of TV or radio), and the eventual censorship of any type could not be and it is not a problem of the judiciary.
C.12
The magistrates most often express their opinions through the representatives of The Association of the Magistrates of Romania or, by case, through the spokesmen of courts/Public Ministry, without existence of a direct relation between the magistrates/prosecutors and the authors of the affirmations regarding to the right of reply is exerted. Therefore, the practice is in the sense of mediation through taking position and in the sense of discretion of the individual persons regarded by some affirmations.
D.1
Regarding the „concision” of the decisions, the Romanian law provides the compulsoriness of the motivation; the „considerations” constitute an important part of any decision; the inexistence of the motivation or the adoption of a motivation that is stranger to the nature of the case are sanctioned through the ways of attack provided by the legislation. In the same time, the motivation has to be concordant with the enacting-terms of the decision, has to constitute the reason of the adopted decision and has to afford a view of the manner how the court based its conviction, of the value that was gave to evidences and of the manner these evidences were appraised; the language used has to be adequate to such a significant document, but without becoming hard accessible for persons who have not a judicial preparation.