“The appellant, the Prosecutor’s Office attached to the Cluj-Napoca District Court, creates the conditions for a flagrant violation of the right of access to the court of the respondent, who risks being put in a situation where his substantive arguments will never be analyzed” – Cluj Court of Appeal – 03.10 .2022
In a recent case, (October 3, 2022), the Administrative and Fiscal Litigation Section of the Cluj Court of Appeal analyzed the appeal filed by the Prosecutor’s Office attached to the Cluj-Napoca District Court against the sentence by which it was obliged to extend the right to drive of the petitioner with 30 days.
It was found that the Prosecutor’s Office never analyzed the merits of the petitioner’s complaint against the refusal to extend the right to drive, suspended during the criminal investigations, but rejected it as inadmissible on the grounds that such a request is within the jurisdiction of the administrative litigation court, and not of the first prosecutor. And when the petitioner addressed the administrative litigation court, the same Prosecutor’s Office invoked the inadmissibility of such an action, practically leading to the effective denial of the right of access to justice.
We quote from the Decision of the Cluj Court of Appeal:
“The court appreciates that, in this case, the exception of inadmissibility must be settled by reference to the defendant-plaintiff’s right of access to justice. In this sense, the Court observes that the respondent filed a complaint with the Chief Prosecutor against the ordinance challenged in the present litigation, a complaint that was rejected by the Chief Prosecutor’s Ordinance of the Prosecutor’s Office attached to the Cluj-Napoca District Court. From the analysis of this ordinance, it is clear that the arguments of the respondent were not analyzed on the merits, the complaint being rejected on issues related to its admissibility, respectively for the reason that the contested ordinance is an administrative act, so that it can only be challenged in administrative litigation , not through a complaint addressed to the first prosecutor. Following the directions of this order, the respondent filed an administrative appeal against the original order, by which his request for the issuance of a proof of right of way was rejected. Submitting an objection to this action, the appellant completely changed the perspective adopted in the Ordinance of xx.xx.2021 and invoked the exception of inadmissibility, showing that the contested ordinance is not an administrative act, but a criminal prosecution act, which can be attacked only at the first prosecutor. It is easy to see that, through this way of acting, the appellant (the Prosecutor’s Office attached to the Cluj-Napoca Court) creates the conditions for a flagrant violation of the right of access to the court of the respondent, who risks being put in a situation where his arguments fund never to be analyzed. We are in a vicious circle in which the respondent filed a complaint with the first prosecutor, a complaint that was rejected as inadmissible, the request being considered by the jurisdiction of the administrative litigation court, so that, later, when he filed an administrative litigation action inadmissibility is invoked, again, on the grounds that he had another appeal and completely ignoring the fact that that appeal had already been unsuccessfully pursued.
In conclusion, considering the respondent’s situation, the Court considers that the admission of the appeal and the annulment of the contested decision, with the consequence of admitting the exception of inadmissibility, would amount to a certain violation of the right of access to the court. Therefore, the court will reject these criticisms of the appellant, without finding it necessary to analyze the legal nature of the contested ordinance, this being irrelevant in the case, the whole context requiring that the respondent’s claims be analyzed by the administrative litigation court.”
On the merits of the case, contrary to the first instance, the appeals court rejected the request to oblige the appellant to extend the right to drive, but the petitioner finally benefited from genuine access to justice, which brings more confidence among litigants in court, related to compliance with art. 21 of the Romanian Constitution, called “Free access to justice”, which provides that “(1) Any person can turn to justice for the defense of his rights, freedoms and legitimate interests. (2) No law can limit the exercise of this right. (3) The parties have the right to a fair trial and to the resolution of the cases within a reasonable period.”
