Transposition de la Directive en Roumanie
TRANSPOSITION DE LA DIRECTIVE EN ROUMANIE
Nom de la personne qui remplit le formulaire / Applicant’s name :
SANDA ELENA LUNGU
Date :
08.03.2010
Pays / country :
ROMANIA
Dans ce formulaire :
On appelle « médiation » le processus mené par un tiers neutre, extérieur à la Justice
On appelle « conciliation » la négociation menée par un juge pour conduire les parties à un accord.
1- La médiation s’appliquait elle avant la transposition de la Directive dans votre pays ?
Depuis quand ?
En quelles matière ? :
- Civile
- Commerciale
- Familiale
- Travail
- Pénale
The first initiatives to promote mediation in Romania goes back to 1996, when the Foundation for Democratic Change, in cooperation with the Canadian International Center for Applied Negotiation (CIIAN) implemented a project targeting the use of mediation in the Romanian judicial system, a project involving more representatives of the legal-related professions and of the Ministry of Justice.
During the following period, the Ministry of Justice, used the funds provided by the Open Society Soros Foundation to implement mediation as an alternative method to justice and, consequently, a legislative proposal on mediation started to be considered. It is important to underline that, ever since that moment until the present day, the Ministry of Justice has shown a constant concern to cooperate and consult with the civil society representatives in the field of mediation and mediator profession.
In the 1999 – 2000 period, the Ministry of Justice carried out a mediator training program, supported by the American Bar Association through the CEELI program and implemented a project in cooperation with the Foundation for Democratic Change which included a pilot program on promoting and implementing mediation within Sector 3 Law Court in Bucharest.
In 2000 the first law draft on mediation was initiated by the Ministry of Justice, a project strongly opposed mainly by the lawyers acting as parliamentarians. The idea of mediation as a solution to improve the quality of justice and to relieve the courts was included on the list of Romania’s commitments to the European Union though, yet with no express specification whether it was to be as legal framework or just as a regulation specifically referring to the application of mediation in relation to the law courts only.
In 2005, the Parliament was submitted several other law drafts on mediation and mediator profession which did not have the sufficient number of votes and support from the Parliament.
In May 2003, the ‘pilot mediation center’ by the Court in Dolj County and Craiova Law Court was set up by Order of the Minister of Justice, while its Organization and Operation Rules were approved by Order No. 2683/16.09.2003; at the same time, the ‘Craiova Mediation Center’ Association has been established. The Mediation Center started to operate since November 2003 by organizing mediation sessions for cases submitted from Craiova Law Court and mediator training sessions addressed to lawyers as major target-group.
The main non-governmental organizations the Ministry of Justice kept permanent consulting process on mediation and mediator profession legislation with were as follows: Foundation for Democratic Changes, Pro Medierea Association, Mediation and Community Security Center Foundation, Iasi, ‘Craiova Mediation Center’ Association, Union of Mediation centers in Romania, Professional Mediator Association (A.M.P.), Romanian Training Institute Association and ALMA-RO Association. .
The lobby of these non-governmental mediation associations in the 2000 – 2006 period was permanent and approached the specialized commissions in the two chambers of the Romanian Parliament.
In May 22nd, 2006 the Law no. 192/2006 on mediation and organization of the mediator profession was published in the Romanian Official Journal. It is this law which brings, for the first time, clarifications on the place of mediation within the dispute / conflict resolution, the role and obligations of the mediator in conflict settlement, how to access mediation services and who can act as a mediator. The real start in building up a unitary mediation implementation system in Romania was enabled only by adopting the Law no.192/2006 on mediation and organization of the mediator profession
The law has been formulated, promoted and, later on, adopted in support of mediation as defined by the normative documents adopted at European level and states the same principles as formulated in the EC Recommendations.
Further, under art. 2 in the law, another essential aspect of mediation is approached, i.e. volunteer basis appeal to mediation, leaving enough room to use mediation in any of the dispute phases / stages, meaning before, during or after a court trial.
„Unless the law provides otherwise, the parties, legal and natural entities, can appeal to mediation on volunteer basis, including after the initiation of a trial in front of competent courts, and thus agreeing to settle any conflicts in civil, commercial, family, penal or any other matters, as provided in this law.”
Also the Law provides that it’s disposals are also applicable in consumer cases and in some labor cases, i.e. conflict of rights which are at the part’s disposal.
2 - Quand votre pays a t-il transposé la Directive ?
a. Loi (date)
b. autre
The Romanian government tried to transpose some of the Directive’s disposals, by the Law 202 from 25 October 2010 on some measures regarding the speeding up of solving the cases . It was modified the Civil Procedural Code, The Penal Procedural Code and Family Code.
The changes made to the Law no.192/2006 concerning mediation and organization of a mediator’s profession by the Law no. 370/2009 were necessary to comply with the Directive 2008/52/EC of the European Parliament and of the Council. So it states that the agreement of the parties may be made enforceable by the court or the public notary. Also, parties are bound to enforce their agreement if the internal law impose it for the validity of this act.
Unfortunately, the change made to the Codes or to the Law no.192/2006 in December 2009 does not cover all the disposals requested by the Directive.
3 – Quelles dispositions ont été prises pour inciter les juges à proposer la médiation ?
Formation du juge ?
None of these modification of the Codes have disposals about the judges training in mediation and there is no any disposal in that regard in the Romanian laws.
There are not many disposals to encourage judges to propose mediation. In the Civil Procedural Code are some disposals who are not compulsory. The judge can recommend mediation, if he/she consider that is appropriate for the case. The judge can invite parties to a session of information about mediation.
In commercial cases, the parties can try mediation before trial.
The term of limitation period in these case is suspended, but for maximum 3 months from the beginning of the mediation.
The session of information made by the mediator is free of charge.
4 – Quelles dispositions ont été prises pour inciter les parties à aller en médiation ,
- information préalable ?
- incitation financière ? (par exemple condamnation aux dépens ou prise en charge par l’assistance juridique)
The session of information made by the mediator on the recommendation of the judge is free of charge.
In our legislation there is only one provision that can be considered as being a penalty, respectively art. 16 section 2 of Government Emergency Ordinance no. 51/2008 regarding the judiciary public health in civil matters, according to which the judge can reject the application for judiciary public health awarding if it is proved that the applicant had refused, prior to trial beginning, to follow mediation procedure or other alternative method of case settlement.
In the same mentioned Government Emergency Ordinance no. 51/2008 we also find stimulating provisions, respectively those included in art. 20 regarding the possibility to reimburse the amount paid as mediator’s fee, if prior to going to law, mediation had been used, but it did not end up in a settlement, similar to the case when mediation was used after having gone to Court, but prior to the first day of hearing.
Provisions included in art. 63 section 2 of Law no. 192/2006 are also stimulating and there it is stated that, if the conflict had been settled using mediation, at the same time with the expedient resolution, the Court shall rule, upon request of the interested party, the reimbursement of the judicial stamp fee paid up for its investiture with.
5 – Quelles dispositions ont été prises pour la qualité des médiateurs ?
The Law no. 192/2006 concerning mediation and organization of a mediator’s profession, as it was amended by Law no. 370/2009 and by Emergency Ordinance no. 13/29.01.2010 for changing and completing some normative documents in the legal field so as to transpose the Directive 2006/123/CE of the European Parliament and the Committee on December 12th 2006 regarding the services within homeland market stipulates in Chapter II concerning the mediation Council the fact that it has as main attributions the building-up of training standards in the mediation field, on the grounds of the best international practices in the field and the authorization of the initial and continuous professional training programs, as well as the ones regarding the mediators’ specialization (art. 20 letters b and c).
On the other hand, Chapter IV of the Law, named “The Rights and Obligations of a mediator”, in the second section, “The Obligations of a Mediator”, stipulates that he or she must permanently improve his or her theoretical knowledge and mediation techniques, taking, in this purpose, classes of continuous training, in the conditions established by the Mediation Council.
Moreover, considering the obligation established by art. 20 let. j in Law no. 192/2006, the Mediation Council passed on February 17th 2007 The Professional Ethics and Deontology Code of the Mediator.
The same mediation Council has the duty established by the law to take measures for the mediators’ following the provisions included in The Professional Ethics and Deontology Code of the Mediator and applies the rules regarding their disciplinary liability (the conditions of the mediators’ disciplinary liability are settled in Chapter IV , 3rd section of the Law, in art. 38-41).
- Qui peut être médiateur ?
According to the provisions of art.7 in the Law no. 192/2006 as it was changed by Law no. 370/2009, “any person may become a mediator provided that the respective person meets the following conditions:
(a) he / she has full work capacity;
(b) he / she has university education;
(c) he / she has an at least 3-year professional experience;
(d) he / she is medically able to practice mediation activities;
(e) he / she enjoys good reputation and has no permanent conviction for committing intentional crimes, likely to affect the prestige / status of mediator profession;
(f) he / she graduated mediator training courses, complying the laws, or a post-university master program in mediation accredited in accordance with the in force laws and approved by the Mediation Council;
(g) he / she has been authorized as a mediator in compliance with the provisions in this Law”.
Mediation is a profession opened to a large category of people, not only to lawyers but allows the parties to be assisted by lawyers.
- Certification obligatoire?
Par qui ?
- Liste des médiateurs
o Existe t-elle ?
o Qui l’établit ?
In order to ensure the organization of the system, a profession self-management autonomous entity has been created which carries out public interest activity as an outcome of the Law no. 192/2006. This entity is the Mediation Council, made up of 9 persons as authorized mediators and 3 alternate members, elected by vote of all the authorized mediators. Within a 2-year mandate, the Council members assume the regulation responsibility in the area of mediation, mainly aiming at ensuring the quality of the mediation action and building a coherent mediation utilization system in Romania.
The first members of the Mediation Council have been validated by Order no. 2220/C of Ministry of Justice on October 6, 2006.
The competences of the Mediation Council are also defined by the Law, in its art. 20, such as:
• To promote mediation activity and to represent the interests of the authorized mediators;
• To elaborate training standards in the area of mediation, based on the best international practices;
• To approve basic and continuous professional training programs of mediators and programs for specialization);
• To prepare and update the list of authorized training providers of mediators,
• To authorize mediators in accordance with the provisions in the current Law and in the Council’s Regulation;
• To prepare and update the panel of authorized mediators;
• To keep records of the authorized mediator offices;
• To monitor the observation of the mediation training standards;
• To deliver all the documents who certifies mediators professional competence;
• To adopt the Ethics and Professional Deontology Code for authorized mediators, as well as their disciplinary liability norms;
• To take measures to ensure the observation of the Ethics and Professional Deontology Code for authorized mediators and implementation of their disciplinary liability norms;
• To submit proposals to complete or to correlate the legislation on mediation, as the case might be;
• To adopt the organization and operation rules;
• To organize the election of the next Mediation Council, as provided the law;
To fulfill any other tasks as stated by the law
The Mediation Council is the only institution with competence in approving the form of exercising the mediator profession and to keep records of existing mediators. The mediator authorization process started in 2007 as a two-staged process. The first stage consists in submitting an evaluation application, along with a file containing documents demonstrating that the respective person fully meets the provisions stated under art. 7 and art. 72, paragraph (2) in the Law no.192/ 2006, while the second stage consists in submitting an application stating the specific form of mediation the respective person wishes to exercise.
For the first stage, most of the applications have been submitted by persons trained as mediators before the occurrence of the mediation law, through various programs, in the country or abroad; later on, the authorization proceeding for those trained by authorized training providers in accordance with the provisions of the Law no. 192/2006 started. Statistically, there were 1397 authorization applications submitted at the Mediation Council up to July 15th, 2008 out of which 53 were rejected in September 2008. The current Panel of Mediators includes 1050 authorized mediators (the first Panel of mediators made public in June 2008 listed 301 mediators).
The authorized mediators are listed in a Panel of Mediators, published in the Romanian Official Journal, on the Mediation Council website and which is to be distributed to all Courts, as well as to any other mediation interested institutions. The Mediator Panel is updated on monthly basis, after meeting of the Council on approving new mediators.
6 - La médiation est elle obligatoire avant la saisine du juge ?
No, it isn’t.
Avez vous des matières où une phase de conciliation menée par le juge est obligatoire ?
No, we don’t have. The judge must try, during all the trial, to conciliate the parties.
7 – Autres dispositions prise pour favoriser la médiation
The mediation is not free of charge, just the session of information is for free.
There are some disposals
Government Emergency Ordinance no. 51/2008 on public judicial assistance in civil matters enacts assistance from the state to ensure the right to a fair trial and to guarantee equal access to the justice act. The Ordinance states that:
- ‘provided that the person who meets the required conditions […] brings evidence that have, prior to the beginning of the trial, passed through a litigation mediation process, shall benefit from the reimbursement of the amount paid to the mediator as a fee. The same right is applicable to the person who meets the required conditions and asks for mediation after the trial started, but before the first day of appearing before the Court.’ (Art. 20);
- ‘should the application requiring judicial public support for settlement belongs to the category which can be subject to mediation or any other alternative resolution, the judicial public support application may be rejected if the applicant has refused such a proceeding prior to the beginning of the Court trial.’ (Art.16, paragraph 2).
Amendment of Law no. 192/2006 through Law no. 370/2009 brought a series of significant specifications in enacting provisions of Directive regarding mechanisms by which settlements resulting from using mediation can become enforceable.
Thus, in the meaning of art. 59 “parties’ agreement can be submitted to notarizing by a notary public, or, if applicable, to approval by the court of law, under requirements provided for in art. 63”, these latter provisions making reference, as previously stated, to the expedient resolution regulated by art. 271 of Code of Civil Procedure; also, this resolution, by section 3 of the same article, awards mandatory title to the mediation agreement.
Moreover, notarizing of the mediation agreement by a notary public or going to a court of law is required in certain situations. Thus, if the mediated litigation aims at the transfer of the private property rights regarding immovable goods or whenever the law requires, under the nullity penalty, the fulfillment of substance and form requirements, parties are bound to have the agreement drafted by the mediator, notarized by the notary public or show it before the court of law - art. 58 section 4 and 5 of Law no. 192/2006 amended.
