Principiul liberului acces la justiție și dreptul la un proces echitabil
The principle of free access to justice and the right to a fair trial

Summary/Abstract: Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2. Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3. At the same time, this principle is also reflected by Article 30 of the Law No 189/2003 on international legal assistance in civil and commercial matters4 which provides that foreign natural or legal persons have the right to formulate applications, to bring actions and to defend their interests under the same conditions as the Romanian natural or legal persons. Moreover, Article 6 of the Law No 304/2004 on the judicial organization5 provides that any person may address the judiciary for the defence of his rights, freedoms and legitimate interests in exercising his right to a fair trial and access to justice may not be restricted6. Although the marginal title of the article in question does not suggest the fundamental theme of the regulation, however the content of the regulation leads us to a fairly plausible conclusion that this is „access to justice”, more precisely perhaps: the conventional, European and constitutional right of any person to address the court, respectively the judge that the law puts at his disposal, for solving his application. It is a crucial and immanent right of any genuinely democratic society, in the absence of which all the other subjective rights or legitimate interests remain simple, embarrassing and scandalous rhetorical figures, even more pernicious than their absence7. The duty of the judges to receive and resolve any application belonging to their jurisdiction expresses, in fact, the correlative obligation of the right of access to justice, enshrined in the praetorian way by the European Court of Human Rights, as autonomous and undeniable conventional right, intercalated in filigree in the provisions of Article 6 paragraph 1 of the Convention and in terminis by the provisions of Article 21 (1) of the Romanian Constitution, revised. Inspired by the regulation of the European Convention on Human Rights, Article 6 of the Civil Procedure Code, entitled „the right to a fair trial, in an optimal and predictable time”, reflects the importance conferred by the domestic legislator to the rules determined by the Convention and by the case law of the European Court of Human Rights8. The Convention regulates the right to a fair trial, resolved publicly, within a reasonable time, by an independent and impartial court, established by law, with the obligativity to pronounce publicly the judgment.

• Details
• Contents