‘Justice’ has always been a sacred word for humankind. Within the philosophical system called Platonism, it has been argued that Justice is a virtue (Plato, p. 24). Many centuries later, Rawls, among other leading thinkers of the legal world, was regarding justice as ‘the first virtue of social institutions’ (Rawls, 1971, p. 3). Be that as it may, in today’s world there is still much controversy going on about the access to justice.
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 might bring one to a different conclusion.
Sometimes, the black letter of the law, which seeks to improve the quality in everybody’s life, runs contrary to our expectations. It might leave us no choice but to passively witness how some of our peers undergo hardship. This is the case with the stamp duty regulated by the Government Emergency Ordinance no. 80/2013. Compared to the previous provisions of the Law no. 146/1997, this act has set extremely high values which every person who wants to address to a Romanian national court has to pay (Livescu, 2014).
According to Article 21 of the Romanian Constitution, every person is entitled to resort to justice and no law may limit the exercise of this right. Additionally, there are some international acts which address this right: Article 6 Paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14 Paragraph 1 of the International Covenant on Civil and Political Rights and Article 10 of the Universal Declaration of Human Rights. Moreover, this protection is increased by the European Union Law, namely the case law developed by the Court of Justice of the European Union (ECJ), which has held in numerous instances that people must benefit from ‘the right to effective judicial protection’ of the rights stemming out of the EU legislation (ECJ, Vassilakis and Others v. Dimos Kerkyras, Sahlstedt and Others v. the Commission, Angelidaki and others v. Organismos Nomarkhiaki Aftodiikisi Rethimnis).
In its attempt to decipher what the access to justice means means, the European Court of Human Rights (ECHR) outlined in the cases of Bellet v. France Airey v. Ireland and Geouffre de la Pradelle v. France 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’ (Charrier, 2000, p. 103). The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (ECHR, Airey v. Ireland). This is particularly so with respect to 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 (ECHR, Delcourt v. Belgium).
However, in practice, this is not always true regarding the access to justice, as there are many financial constraints. 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’ (Robert, 2003, p. 265), the poor are often prevented from addressing the justice system due to their financial situation. As shown in cases Weissman and Others v. Romania, Marolux SRL and Jacobs v. Romania, and Ashingdane v. UK, this can lead to the conclusion that access to justice is not an absolute right (Pettiti, Décaux, Imbert1999, p. 240). It is considered that for the sake of a good administration of justice a state is entitled to impose financial restrictions upon the access to it (ECHR, Lungoci v. Romania; Tolstoy-Miloslavsky v. UK). However, in spite of the leeway that each state has to this effect, the Court has explicitly emphasised in a few cases, namely Weissman v. Romania, Iorga v. Romania, Marolux SRL and Jacobs v. Romania, that such limitation is in line with Article 6 Paragraph 1 of the Convention only if it seeks a legitimate purpose and if proportionality is kept between the means used and the objective that is to be achieved (ECHR, Weissman v. Romania; Iorga v. Romania; Marolux SRL and Jacobs v. Romania). Following this line of reasoning, it is obvious that the total amount which has to be paid by a claimant must be appreciated in light of the circumstances of the trial, including the solvability of the claimant and the stage of the trial upon which the respective restriction is imposed (ECHR, Marolux SRL and Jacobs v. Romania; Weissman v. Romania).
Throughout its existence, the Court has been analysing the financial limitations to the access to justice, such as the judicial taxes imposed on filing an action or recourse (ECHR, Elena Negulescu v. Romania). The Court established that such limitations are subject to Article 6 of the Convention.
The European Court of Human Rights emphasised in Weissman and others v. Romania and Iorga v. Romania that 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 (ECHR, Tolstoy-Miloslavsky v. UK). However, in these two landmark cases, the Court held that the Romanian system is contrary to Article 6 Paragraph 1 of the Convention in situations 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 claimant or its income. 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. Therefore, this stripped him of the right to have its case solved by a tribunal in the meaning of Article 6 of the Convention and, as a consequence, Article 6 Paragraph 1 was breached.
To conclude, it is recommended either that (1) Romania establishes a system of judicial aid for non-criminal claims or (2) the Romanian judge, when confronting with a dispute in which Government Emergency Ordinance no. 80/2013 has to be applied, declares it inapplicable to the respective dispute, using the so-called ‘conventionality control’, which can be exercised even by the Constitutional Court of Romania (Constitutional Court of Romania, Decision no.146/2000). 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 (Rideau, 1997, p.3; Serment, 1996, pp. 24-26).