Certain issues related to the time limit for exercising the review for contradiction of judgments, in relation to the access to justice and the right to a fair trial

DEZBATERI

Abstract

The amendment, by Law no. 310/2018, of the provisions of para. 4 of Article 513 of the Code of Civil Procedure, of their part relating to the solution to be delivered in the case in which the review was exercised for the existence of certain adverse decisions resulting from the disregard of the positive effect of res judicata, clarified enough clearly, even if only implicitly, the scope of the ground provided for by Article 509 para. 1 item 8 of the Code of Civil Procedure: the review exercised for this ground shall not only allow, as well as according the previous Code of Civil Procedure, the adjustment of the situations in which the negative effect of res judicata was disregarded, but also the adjustment of those situations in which in the last trial, any clarifications protected by the positive effect of the prior res judicata were omitted. However, as opposed to the solutions or rulings being within the negative effect of res judicata, and the valorisation of which or, on the contrary, disregard in the second trial results, as a rule, from the operative part of the decision, in the case of clarifications subsumed to the positive effect, the simple knowledge of the operative part of the decision delivered in the last trial is not sufficient to parties in most cases, in order to be able to understand whether such clarifications have been indeed observed and valued in legal terms under this decision, or, on the contrary, they have been disregarded, in which case the review may be exercised. The valuing or, on the contrary, disregard of the positive effect of res judicata is expressed, in many cases, in a subtle or even insidious manner, and the implications at the level of the solution contained in the operative part of the decision can be perceived in its full dimension only after knowing the considerations underpinning the operative part, therefore, only after the drawing up and communication of the decision. In such circumstances the elapse of the review period „from the date on which the last decision has remained final” (Article 511 para. 1 item 8 of the Code of Civil Procedure) jeopardizes, in the cases in which the last decision remains final since its delivery (hence, before being communicated to the parties so that they could know its considerations), the actual and effective access of the concerned parties to the means of review, and they are responsible for exercising the review within a deadline which starts to run and may expire before they have known the considerations which are likely to allow them to appreciate whether, concretely, the conditions provided for by law to exercise the remedy at law are met. 

Keywords: review, positive effect of res judicata; exercise time limit; access to justice; fair trial