Problems regarding the necessary documentation and the refusal to approve the documentation. The solutions of the courts and the solution of the High Court of Justice. The role of the judge in finding out the truth. The need to perform a topo expertise.

Our team of lawyers was asked to find solutions against the refusal of the competent authority to issue the certificate of attestation of the ownership right over the lands owned by a prestigious company with state capital, within the municipality of Constanta.

We promoted an action in court in this regard, subjecting to the control of the administrative and fiscal contentious court the refusal of the defendant, central public authority, to issue this administrative act on the existing buildings in the patrimony of the company, our client.

Although, on the first court, our action was dismissed, the High Court of Cassation and Justice ruled in our favor. It decided quashing the decision of the court of first instance and sending the case for retrial, on the grounds that by the quashed decision, the court violated the rules of procedure that attracts the sanction of nullity.
In the motivation, the court of judicial control wanted to expressly mention that “one of the fundamental principles of the civil process is the role of the judge in finding out the truth, regulated by the provisions of art. 22 of the Romanian Code of Civil Procedure, according to which: (1) The judge resolves the dispute according to the rules of law that are applicable.
(2) The judge has the duty to insist, by all legal means, in order to prevent any mistake regarding the finding of the truth in question, based on the establishment of the facts and by the correct application of the law, in order to pronounce a sound and legal decision. To that end, the judge is entitled to ask the parties to give explanations, orally or in writing, to put these factual or legal circumstances into question even they are not mentioned in the main application or in the counterclaim, to order the administration of the evidence required, as well as other measures required by law, even if the parties object.
(7) Whenever the law entitles the judge to discretion or requires him to take into account all the circumstances of the case, the judge shall take into account, inter alia, the general principles of law, the requirements of fairness and good faith. “

In this case, the court of judicial control (the supreme court in Romania), found that the judge of the fund disregarded this principle, because, to verify the validity of the claims made in the interest of our client and to meet the necessary conditions for issuing the certificate of private property, it is necessary to carry out a technical expertise in the topography specialty, in order to be able to identify and clarify problems that determined the refusal to approve the documentation.
Although the plaintiff asked the court to approve this evidence, the trial judge rejected the request, thus violating the principle of the judge’s role in finding out the truth. The test with the technical expertise in the topography specialty was necessary and useful in this case because it can identify the neighborhoods of the land, it can be established if the land for which the certificate of attestation of private property was requested is the one identified in the cadastral documentation prepared and submitted by by. society. This evidence instantly presented the opinion of a specialist on the existing documentation in the file in order to establish correctly the factual situation regarding which the court was to apply the norms of material law.
For the reasons shown, the Court concluded that it is necessary to quash the contested sentence and send the case to a new court of the same court, following that the court will rule after full clarification of the facts, by administering all necessary issues, including evidence with technical expertise in specialty topography.