Fruitless Efforts

At the beginning of November the Parliament adopted in the 1st reading the draft law on modifications to be introduced into the Code of Civil Procedure. According to the draft art. 206-(4) of the Code has been proposed to be excluded from the Code.

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This paragraph of art. 206 provides that in case both parties (claimant and respondent) have not appeared for judicial hearings without having presented any reasons for its failure to appear and neither party asked the court to hold the hearings his absence the court postpones the case examination. In case of repeated non-appearance the court takes the case off the list of cases examined by it.

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The draft law providing exclusion of the above paragraph is supposed to reduce the time of cases examination by courts and to oppose intentional retardation of cases by parties.

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Recently President Voronin presided at the meeting with heads of law-enforcement and judicial bodies. He stated that retardation of examination of cases has become "the national sport" and may create problems at the European Court of Human Rights. According to him certain cases last for several years harming the interests of citizens, state, diminishing the trust in state authorities, damaging the image of the country as a whole. The President has demanded the acceleration of cases examination.

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In the Informative Note to the Draft Law signed by the deputy Minister of Justice Mr. Nicolae Esanu the exclusion of para. (4) of art. 206 of the CCP is intended to eliminate artificial retardation of cases because of ungrounded failure of parties to appear before the court. The authors of the draft say that the possibility to take the case off on the first hearing in case of the parties' unmotivated absence will permit to accelerate examination of cases by Moldovan courts.

But is this the real problem? And can it be solved that way? This whole story reminds me of attempts to treat consequences of a disease instead of its cause.

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At the moment the court has the right to quit proceedings on the case and take it off on the first hearing if the claimant has not appeared for the hearing after being duly informed, has not presented any motivated reasons for its non-appearance and has not asked the court to examine the case in his absence. And respectively the court has the right to examine the case on the second hearing in case of respondent's repeated absence with the latter one having been properly informed having not presented any grounded reasons for its non-appearance.

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So, Moldovan courts have all legal possibilities to examine cases on the first or second hearing. However, that rarely happens. First, a lot of cases need a lot time to be properly examined. It sometimes takes 5, 6, 7 or more hearings. And that is OK.

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The main problem is that a lot of cases are very often postponed because of the parties' failure to appear before the court. A couple of years ago I had a case that had been postponed about 6 or 7 times because of the other party's non-appearance. So, why does that problem regularly recur? And why it won't be solved at all by the above mentioned modifications into the Code of Civil Procedure? The answer is so simple that our authorities should feel ashamed as the problem can be so easily resolved.

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The scourge of Moldovan judiciary that often causes too long cases examination is that the litigating parties... ARE NOT PROPERLY NOTIFIED BY COURTS about the date and time of judicial hearings!!!

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So, what usually happens? The court sends a notification by ordinary mail without any confirmation of receipt. Than the party does not appear on the respective date and later on says that she was not duly informed about the hearings. And even in case when such a party has received the notification the court has no evidence that that party has been duly informed. And it must defer the case examination. And the same situation may repeat time after time. Even if the court takes the case off the absent party can then easily reinstate the case without even appealing to the upper courts by submitting a motion stating therein that she has not been notified about the hearing. Sometimes the cases last for very long periods of time because of this silly (I cannot name them otherwise) failures to inform the parties about the examination of the case.

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The cost of solution of the problem is just a couple of leis that should be paid for the notice of receipt. Such a notice comes back to the court and serves as an evidence of due notification of parties about the time and date of judicial hearings. That's it. There is no necessity in any modifications of the Code of Civil Procedure, no system changes, no parliamentary debates. Just summonses with notices of receipt.

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I forsee your question: if the solution is so simple than why the problem still exists? The majority of judges say that courts have no money for this, that can't simply afford this notices of receipt annexed to their letters with summons sent to parties. In order to inform a party judges sometimes oblige the other party to send a summon with such a confirmation. And though it helps sometimes in conrete cases this is not a solution because it is not the obligation of parties to a litigation to inform each other, its the obligation of courts.

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Thus, instead of spending senselessly a lot of time for finding solution, preparing draft laws, debating them and passign through the Parliament, making other fruitless efforts and finally having no results wouldn't it better to find sources to let courts do what they have to do according to already existing rules...