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26.04
2018

The Court Examined the Constitutionality of Certain Provisions of the Code of Civil Procedure on Judicial Mediation

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On Thursday, 26 April 2018, the Constitutional Court delivered a judgment on the exception of unconstitutionality of certain provisions of the Law on the Code of Civil Procedure no. 225 of 30 May 2003 (Complaint no. 3g/2018).

Circumstances of the case
The case originated in an exception of unconstitutionality raised by the lawyer Alexandru Prisac, before the Court of Law of Căușeni, Ştefan-Vodă district.

The exception challenges the constitutionality of Articles 1821, 1822, 1823, 1824 and 1825 of the Law on the Code of Civil Procedure no. 225 of 30 May 2003, which regulates the judicial mediation procedure.

The author of the exception of unconstitutionality claims that the obligation of judicial mediation is contrary to the right to a fair trial guaranteed by Article 20 of the Constitution.

Court's assessment:
The Court examined this exception in the light of the right to trial within a reasonable time, guaranteed by Article 20 of the Constitution.

The Court acknowledged the existence of a legal basis for this interference and the compliance with the law quality standard.

It observed that the challenged provisions establish a mandatory way of a friendly settlement of claims brought towards the court of law, with the help and under its leadership, in cases expressly provided by law. The Court found that any person who wishes to bring an action having as subject-matter a mediated litigation must first, with the assistance of the judge, resort to judicial mediation procedure.

With regard to the legitimate aim pursued, the Court observed that the objectives of the judicial mediation procedure aim for a faster settlement of certain categories of litigation, relieve the workload of the courts of law and to avoid the costs of a judicial procedure. Thus, the Court found that these objectives may fall under the general legitimate purpose of public order provided for in Article 54 (2) of the Constitution.

The Court concludes that there is a rational connection between the disputed measures and the legitimate purpose of the Constitution.

With regard to the existence of less intrusive alternatives, the Court held that a purely optional judicial mediation procedure is not as effective as a compulsory procedure, which must precede any litigation. It showed that, even though one or both sides are reluctant to do so, there are still chances that there will be opportunities for settling a dispute that the parties could not foresee before.

Finally, with regard to the existence of a fair balance between competing principles, the Court has established that the mediation procedure does not determine, under normal circumstances, a substantial delay in order to have a trial within a reasonable time. In this respect, it referred to paragraphs 1 and 5 of Article 1822 of the Code of Civil Procedure providing that the mediation procedure must be completed within a maximum of 50 days from the filing of the claim.

The Court also held that the obligation to undertake judicial mediation does not affect the voluntary nature of discussions and negotiations regarding the mediation background.

Moreover, the Court found that in the judicial mediation, the parties are the ones that own the prerogative of admitting or rejecting any solution with respect a friendly settlement of the dispute, the judge only having the role of assisting and facilitating the discussions of the parties by treating them from a neutral position.

From this perspective, the Court considered that there was no major discrepancy between the objectives pursued by the contested legal measures, i.e. solving a litigation with celerity, with no high costs and in accordance with the interests of the parties, on the one hand, and possible inconveniences posed by the obligation to enforce a mandatory mediation procedure on the other hand. It noted that interference with the right to a fair trial within a reasonable time in the case of persons who would not obtain a mediation agreement should be qualified as a minimum one, as the benefits associated with the procedure greatly outweigh the disadvantages. The 50 days, implied by the prior judicial mediation procedure do not constitute a substantial delay in bringing a legal action. 

Consequently, the Court found that the judicial mediation procedure regulated by the provisions of Chapter XIII1 of the Code of Civil Procedure does not violate the right guaranteed by Article 20 of the Constitution, with regard to the judgment of the case within a reasonable time.

Conclusions of the Court
In view of the above, the Court rejected the exception of unconstitutionality raised by lawyer Alexandru Prisac, in case no. 2-591/2017, in the pending process at the Court of Căușeni, Ştefan-Vodă district.

The Court declared constitutional Articles 1821 1) lit. b), 1822, 1823, 1824 and 1825 of the Law on the Civil Procedure Code no. 225 of 30 May 2003.

This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of Moldova.

The full text of the judgment will be available on the Constitutional Court’s website http://www.constcourt.md/

This is an English language courtesy translation of the original press-release in Romanian language.

 

 
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