In a recent decision, the Supreme Court of Justice provides a definitive interpretation of the provisions of Civil Procedure Code art. 457 par. 4 that governs applications for further review of court decisions. The provision in question provides that parties present at the close of the minutes of a proceeding must calculate their deadlines for filing an application for further review (including appeals) from the time of conclusion of the hearing. If any party was not present, the deadline is calculated from the date the absent party was served with the closing minutes.
Before this decision, courts had issued conflicting interpretations about the effect of art. 457, par 4. Decisions were divided about whether the deadlines contained in that provision apply if a party serves an improper application for redress despite the ruling court having included the correct avenue of redress in its decision.
In other words, the general rule is that if a court judgment refers in the enacting terms of the decision to an unlawful avenue of redress for further review, then the party that follows the court’s faulty prescription for further redress may nevertheless serve a lawful appeal after the previous one was dismissed as improper. But what if the enacting provisions of the decision prescribe the proper means for pursuing further redress, but instead a party serves an improper application?
In reaching its conclusion, the Supreme Court of Justice considered the doctrine and national jurisprudence to conclude that the provision of art. 457, par. 4 applies only if the decision contains inaccurate information about the proper avenue of redress. The Court reasoned that the purpose of the provision is to protect a party against errors contained in the enacting terms of the judgement.
If the party pursues an unlawful avenue of redress when the terms of enactment of the judgment contain a correct statement of the proper procedure, then the application will be dismissed without further recourse. In short: follow the procedure stated in the judgment unless you are very sure that it is incorrect and that you know the correct one.
The Supreme Court Justice of Romania issued its decision in this matter on 24 October 2016. Decision no. 19/2016 has now been published in the Official Gazette.