Judicial stamp duties and access to court

Abstract

One of the cornerstone principles of the rule of law in a democratic society is the right to a fair trial. An inherent aspect of the right to a fair trial is represented by the right of access to court, understood as an individual's prerogative to institute proceedings before courts in civil matters. Albeit the almost absolute wordings of article 21 of the Romanian Constitution and article 6, para. 1 of the European Convention on Human Rights, the jurisprudence of the European Court of Human Rights has generally recognized that the right of access to court has a non-absolute character.

Therefore, some restrictions or limitations may be imposed, provided that they observe the requirements of legitimate scope and proportionality. Among the possible limitations, the ECtHR also included restrictions of a financial nature, such as the payment of certain taxes when lodging an action to court. In Romania, the tax levied on claims and requests filed with courts is referred to as judicial stamp duty and failure to pay normally results into the annulment of the action brought to court. Although these taxes are extensively regulated by national legislation and have become habitual, in certain circumstances, this particular mechanism impairs the very right of access to court.

To this end, the following article addresses the issue of compatibility between judicial stamp duty and the right of access to court and attempts to find solutions for the mitigation of the negative effect of financial limitations on the right to a tribunal. As such, the article contains a brief presentation of national legislation on judicial stamp duty and an extensive analysis of the right of access to court by means of review of constitutional provisions, the conditions imposed by article 6, para.1 of the ECHR and notably relevant case law.