FREE ACCESS TO JUSTICE FOR ALL SOCIAL MINORITIES – REALITY OR MYTH?
“Justice”, a sacred word of humankind. It has been argued, within the philosophical system called
Platonism, that Justice is a virtue1.Many centuries later, Rawls, among other leading thinkers of the
legal world, was regarding justice as “the first virtue of social institutions”.2 Be that as it may, in
today’s world there is still much controversy going on about the free access to it. Although
according to all developed legal systems every human being is entitled to present his or her case in
front of an independent and impartial tribunal, the harsh realities of life bring one to a contrary
conclusion.
Sometimes the black letter of the law – which ex hypothesi seeks to enhance everybody’s lives –
runs contrary to our expectations, leaving us no choice but to passively witness how the weakest of
our peers undergo hardship. This is the case with the stamp duty regulated by the Government
Emergency Ordinance (hereinafter, “GEO”) no. 80 of 26 June 20133. This act has set extremely
high values that every person who wants to address to a Romanian national court has to pay4.
According to Art. 21 of the Romanian Constitution, every person is entitled to resort to justice and
no law may limit the exercise of this right. Additionally, Art. 6(1) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, Art. 14(1) of the International
Covenant on Civil and Political Rights and Art. 10 of the Universal Declaration of Human Rights
address this right.5 On the other hand, this protection is increased by the EU Law, namely the case
law developed by the Court of Justice of the European Union, which has in numerous instances held
that the persons must benefit from „the right to effective judicial protection” of the rights stemming
out of the EU legislation6.
In its attempt to decipher what it means, the European Court of Human Rights outlined that “For the
right of access to be effective, an individual must have a clear, practical opportunity to challenge an
act that is an interference with his rights”.7 The Convention is intended to guarantee not rights that
are theoretical or illusory but rights that are practical and effective. 8 This is particularly so of the
right of access to the courts in view of the prominent place held in a democratic society by the right
to a fair trial.9
However, in practice this is not always true with respect to the free access to justice. Although, as
one author put it, “[j]ustice in non-criminal matters does not have to be necessarily free, but it has to
be cheap”10, the poor are often prevented from addressing the justice system due to their financial
situation. Free access to justice is not an absolute right.11 It follows that for the sake of a good
1
The Republic, Electronic Classics Series, p. 24, available at www2.hn.psu.edu/faculty/jmanis/plato/republic.pdf.
J. Rawls, A Theory of Justice, Harvard University Press, Cambridge, 1971, p. 3.
3
Published in the Official Bulletin of Romania no. 392/2013.
4
Compared to the previous provisions of the Law no. 146/1997 (Official Bulletin of Romania, no. 173/1997). For the
present status quo, see Art. 3 and M. Livescu, Încălcările aduse dreptului de acces la justiție și dreptului de proprietate
prin OUG nr. 80/2013 privind taxele judiciare de timbru, available at http://www.juridice.ro/315874/incalcarile-adusedreptului-de-acces-la-justitie-si-dreptului-de-proprietate-prin-oug-nr-802013-privind-taxele-judiciare-de-timbru.html.
5
The right to free access to justice is also enshrined in the constitutions of other countries within the European Union,
e.g.: Finland (Art. 16), Germany (Art. 13), Greece (Art. 8), Italy (Arts. 24 and 25), Luxemburg (Art. 13), the
Netherlands (Art. 17) Portugal (Art. 20), Spain (Arts. 24 and 53).
6
European Court of Justice (ECJ), Vassilakis and others/Dimos Kerkyras, C-364/07 [2008] RJ I-90, 12 June 2008; ECJ,
Sahlstedt and others/Commission, C-362/06 [2009] RJ I-2903, 23 April 2009; ECJ, Angelidaki and others/Organismos
Nomarkhiaki Aftodiikisi Rethimnis, C-378/07 [2009] RJ I-3071, 23 April 2009.
7
Bellet v. France, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57952; Airey v. Ireland;
Geouffre de la Pradelle v. France, para. 34, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=00157778; J.L. Charrier, Code de la Convention européenne des droits de l'homme, Ed. Litec, Paris, 2000, p.103.
8
Airey v. Ireland, para. 24, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57420; Golder v.
UK, para. 35, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57496.
9
Delcourt v. Belgium, para. 25, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57467.
10
J.Robert, Droits de l’homme et libertes fundamentals, Ed. Dalloz, Paris, 2003, p. 265
11
Weismann and others v. Romania, para. 34, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=00175511; Marolux SRL and Jacobs v. Romania, para. 29; Ashingdane v. UK, para. 29, available at
2
administration of justice a state is entitled to impose financial restrictions upon the access to it.12
However, in spite of the leeway that each state has to this effect, the Court has explicitly
emphasized that such limitation is in line with Art. 6(1) of the Convention only if it seeks a
legitimate purpose and if propotionality is kept between the means used and the objective that is to
be achieved13. Following this line of reason, it is obvious that the total amount that has to be paid by
a plaintiff must be appreciated in light of the circumstances of the trial, including the solvability of
the plaintiff and the stage of the trial upon which the respective restriction is imposed14.
With regard to the financial limitations which can be imposed on the access to justice, the Court
established that they are subject to Art. 6 of the Convention. Throughout its existence, the Court has
been analysing the judicial taxes imposed on filing an action or a recourse.15
According to the Court, establishing the value of the stamp duty proportional with the value of the
claims in the context of a civil action does not constitute, in itself, a violation of the right to free
access to justice.16 However, in the two landmark cases Weissman and others v. Romania and Iorga
v. Romania, the Court held that the Romanian system is contrary to Art. 6(1) of the Convention in
cases where the value of the stamp duty is determined as a percentage of the value of the dispute,
without taking into consideration the special situation of the plaintiff or its income.17 For instance,
in the Weissman case, the Court ruled that the unjustifiably high value of the amount that Mr
Weissman had to pay (323.264 euros) determined him to not proceed with filing the claim and, as a
consequence, stripped him of the right to have its case solved by a tribunal in the meaning of Art. 6
of the Convention.18 As a consequence, Art. 6(1) was breached.
To conclude, because hindrance in fact can contravene the Convention just like a legal
impediment19, it is recommended either (a) Romania establishes a system of judicial aid for noncriminal claims or (b) the Romanian judge, when confronting with a dispute in which GEO no.
80/2013 has to be applied, declares it inapplicable to the respective dispute, using the so-called
“conventionality control”.20 We must also bear in mind that free access to justice is an instrument
and a great success of the Rule of Law and guaranteeing it is nothing else than the consequence of
the idea of the Rule of Law.21
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57425; L.-E. Pettiti, E. Décaux, P.-H. Imbert, La
Convention Européenne des droits de l'homme, Ed.Economica, Paris, 1999, p.240.
12
Lungoci v. Romania, para. 36; Tolstoy-Miloslavsky v. UK, para. 61 et seq., available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947; Weissman and others v. Romania, para. 35, Iorga v.
Romania, para. 36, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947; Kreutz v. Poland
para. 59, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59519. The Constitutional Court of
Romania adopted the same approach – see, e.g. Decision nr.18 of 29 January 1997, Official Bulletin of Romania, no.
148/1997.
13
Weissman v. Romania, para. 36; Iorga v. Romania, para. 36; Marolux SRL and Jacobs v. Romania, para. 30.
14
Marolux SRL and Jacobs v. Romania, para. 31; Weissman v. Romania, paras. 31, 37.
15
Elena Negulescu v. Romania, para. 28, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=00157425.
16
Tolstoy-Miloslavsky v. UK, paras. 61-67
17
Weissman and others v. Romania, para. 44; Iorga v. Romania, para. 47.
18
Weissman and others v. Romania, para. 40
19
Golder, para. 26; Airey v. Ireland, para. 25; Furthermore, the Court held that fulfilment of a duty under the
Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State
cannot simply remain passive (Marckx, para. 31; De Wilde, Ooms and Versyp, para. 22 and that the obligation to secure
an effective right of access to the courts falls into this category of duty. For a similar reasoning, see the Constitutional
Court of Romania Decision no.40 of 29 January 2004, Official Bulletin of Romania no. 229/2004.
20
Even the Constitutional Court may exercise such a control – see, e.g.¸Decision no.146 of 14 July 2000, Official
Bulletin of Romania no. 566/2000.
21
J. Rideau, Le droit au juge: conquete et instrument de l'Etat de droit, in J. Rideau (coord.), Le droit au juge dans
l'Union Européenne, LGDJ, Paris 1997, p. 3; L. Serment, Convention européenne des droits de l'homme et contentieux
administratif français, Ed. Economica, Paris, 1996, pp. 24-26.