Cristian Zsifkov - Actual truth vs. Legal truth | People of Justice 2022 Timișoara
Author: Cristian Zsifkov
I have a brother who is five years my senior. When I was kid, when my mother took us to the barber, the hairdresser always called him Mister Lawyer. I don't know why. I think she liked him. I don't think that this was critical for the career I chose, but it's funny in a way. Now, I ended up being Mister Lawyer, while my brother works in IT. Don't worry, he's doing fine and he lives in London. My parents wanted me to be an engineer, like everyone else in the family. But I was bent on studying law. Through my own forces, I succeeded in finding a mentor, a lawyer from Timișoara, who was willing to take me beside her. This was happening in twelfth grade, during high school. After that, I studied hard, I passed the finals, I was admitted to law school, finished university, passed the bar exam, got tenure, and, finally, I opened my own law office. It wasn't as easy as I described it, but that's a different story. As a lawyer, you can have an important role or almost none at all. We jokingly like to call it: the fig attorney. Basically... You stay for a while, sign the papers and you leave. I didn't want to be that way. However, over time, I understood that... Reality is a bit different and more complicated. And that's what leads some of us to assume the role of the fig.
I am referring to the difference between the real truth and the judicial truth which exists and, from my position, can often be observed. What really happens somewhere is one thing and what you can really prove is something else. I will explain this using two short stories. The first one happened when I was at the beginning. It was one of the first cases I got from my mentor. The deal seemed simple: a client had two businesses with the same headquarters.
One day, the Territorial Labour Inspectorate came to the site and found two people paid under the table. 20,000 lei fine for each one of the businesses, 40,000 lei in total. According to the law, we had 15 days to appeal against the fines. I get to work, I write them down. I'm almost done, but the witnesses' address was missing. So, I write down only the name and, afterwards, I would let the court know the addresses, too. The two appeals are filed at the same time and two judges from the same court are randomly selected. This is the procedure. The subpoena I was waiting for arrives and I am told to pay a tax. It's all good until now. I knew they would ask for this tax. However, on both subpoenas, after the standardised text, in a corner, I was asked to supply the addresses of the witnesses. Since I'd barely started and didn't know about this custom of the courts, this detail passed unnoticed. After about two weeks, I find out that one of the appeals receives a court date and I am notified, under the sanction of no longer being able to propose witness testimony, that I have the obligation of personally bringing them to the hearing. In the other one, the appeal is overturned, because I didn't supply the addresses of the witnesses. I won't take you through all the steps. This kind of technicality is precisely what makes us different from figs. What's certain is that I had two identical situations with different decisions. In the end, it got solved. I appealed the decision. I won the case and, in the end, both fines were overturned by the higher court. But what shocked me was to see two identical cases that, initially, got different decisions. The judge can do just about what he wants in the case he's judging and he can interpret the law whichever way he sees fit.
Ever since I realised this, I try to be honest with my clients and I try to explain to them that I will do all I can. Together, we work on a battle plan, but, in the end, the decision belongs to the judge and I try to put them in their shoes. I don't want to shift the blame, but to make them see that judges are people, too, that they are overburdened and the lack of a unified practice means that, if they will ever wake up feeling grumpy, pray that they won't be judging your case in that day. I have another story. In this case, the client is a neighbour of his uncle who has some mental health issues. Due to some conflicts, the uncle kept bothering and threatening him.
In 2019, the nephew goes to the police and asks for a protective order. His parents did the same. The solution: the order is dismissed for the nephew, as well as the father and the mother. In the parents' case, the court was of the opinion that they didn't have grounds for it. In the case of the nephew, it was dismissed because the meaning of family member, laid out by the Criminal Code, doesn't include the relationship between a nephew and his uncle. Basically, they told them him that, legally, they're not family, so they aren't allowed to sue and demand a protective order. In spring this year, the relationships got worse. In a scandal near the fence, the uncle grabbed the 30-year-old nephew by the arms and broke one of his fingers. The police came. The nephew filed a complaint. He went to the National Forensic Institute for an expert's report, we went to court for the same protective order. Over the course of the entire trial, which took about two weeks, the court seemed to be on my side. Same goes for the prosecutor's office who, in the end, even requested for the protective order to be granted, but, despite this, at a certain point, the uncle hired a lawyer who found out about the initial claim, the one from 2019, and invoked it, saying that the same court, but a different judge, had established that between them, nephew and uncle, there's no kinship. I told the client: this is the risk.
The matter decided means that, if a court has given a final decision at some point in your case, it can't go back and judge the same matter again. The solution was a bit bittersweet: Yes, the protective order should be issued. Yes, there's a danger. But, despite all this, in 2019, look what this judge said. It was shocking. Basically, he was right, but, in his case, justice wouldn't be applied. The client understood the reasoning. Somehow, he accepted the idea that he can't obtain a protective order, even though another nephew could obtain a protective order against the same uncle.
I told you all this, in order to see that, sometimes, justice isn't being done and the reasons are often procedural loopholes or a lack of unified practices. Yes, we do need acts of justice that are predictable. Fairness should exist. Two persons in identical situations should get the same verdict. I know that this undermines the trust in the justice system, but I have good news as well, so we can still finish on a positive note. I feel that there are exceptions to the situations I have presented, that things are going in the right direction, that courts and the panels of judges from each court are giving similar verdicts.
There really are multiple initiatives going in the direction of standardisation. Fortunately, it's getting better and, moreover, from what I've seen we shouldn't let this kind of situation diminish our trust. The system does its job most of the time for normal people and this motivates me to continue.
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The People of Justice 2022 shows were produced alongside Decât o Revistă, a team of journalists who believe in the transformational power of stories.
Together with over 1,000 viewers, we imagined what a more just Romania could look like through vulnerability, empathy and the power of example. In each city we brought on stage lawyers, journalists, civic activists and artists whose true stories about justice: how we achieve it, what it means for justice, education, the healthcare system or our cities.
