The Cluj-Napoca Court, in charge of resolving a request for legal aid, has set a new precedent at the county level by exempting the petitioner from paying the bail.
Through the petition filed with the court, the petitioner requested exemption from paying the court fees and the bail amounting to 11629, established in a case involving an execution appeal and a request for the temporary suspension of forced execution, according to Article 718 paragraph (1) and (2).
The court took into account the petitioner’s arguments and jurisprudence, concluding that a bail amount of such magnitude, compared to her income totaling less than 600 lei, contradicts the right to a fair trial guaranteed by Article 21 paragraph (2) of the Constitution and Article 6 paragraph 1 of the European Convention on Human Rights.
Referring to the decision of the European Court of Human Rights in the Micallef v. Malta case, the court emphasized that Article 6 of the Convention applies to procedures involving urgent provisional measures, especially when these procedures are decisive for the civil rights of the plaintiff, citing the cases Aerts v. Belgium and Boca v. Belgium by the ECtHR.
Interpreting the provisions of Article 21 of the Constitution in line with the jurisprudence of the European Court of Human Rights, the court stated that the right of access to justice only includes actions aimed at establishing civil rights and obligations. In this regard, an analysis was conducted, and at first glance, the temporary suspension of forced execution does not aim to establish civil rights or obligations. However, by referring to the Micallef v. Malta case mentioned earlier and considering that the contested forced execution involved a credit contract related to patrimonial rights, the court understood the condition of the necessity of a civil action to be fulfilled, making Article 6 of the ECHR applicable.
Furthermore, the court noted that the forced execution procedure was initiated based on an enforceable title that was not established judicially, as it concerned a credit contract and a mortgage contract declared by law as an enforceable title. In this sense, it was determined that the temporary suspension of forced execution is necessary to avoid the execution of elements of the patrimony that would be difficult to recover later, especially since the creditor’s right has not yet been established by a judge but directly by law. Consequently, the court decided that the measure of suspending forced execution falls under the scope of Article 6 of the ECHR, having a decisive impact on the establishment of substantive law.
In the conclusion issued by the Cluj-Napoca Court, the petitioner, represented by lawyer Tania Câmpan from the law firm SCPA Gioarsa, Timonea, Campan & Partners, established a new precedent at the county level in Cluj, exempting her from paying the bail established by a court handling an execution appeal, prioritizing the application of Article 6 of the ECHR.
Lawyer Tania Câmpan
