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REFLECTIONS The right to free access to justice – reality or myth?
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.
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, 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).
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 val- However, in practice, this is not always true regarding ues which every person who wants to address to a Ro- the access to justice, as there are many financial constraints. Although, as one author put it, ‘[j]ustice in manian national court has to pay (Livescu, 2014). non-criminal matters does not have to be necessarily According to Article 21 of the Romanian Constitufree, but it has to be cheap’ (Robert, 2003, p. 265), the tion, every person is entitled to resort to justice and poor are often prevented from addressing the justice no law may limit the exercise of this right. Additionsystem due to their financial situation. As shown in ally, there are some international acts which address cases Weissman and Others v. Romania, Marolux SRL this right: Article 6 Paragraph 1 of the European and Jacobs v. Romania, and Ashingdane v. UK, this Convention for the Protection of Human Rights and can lead to the conclusion that access to justice is not Fundamental Freedoms, Article 14 Paragraph 1 of the an absolute right (Pettiti, Décaux, Imbert1999, p. 240). International Covenant on Civil and Political Rights It is considered that for the sake of a good administra36 26