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Universul Juridic magazin

The necessity to pay a security (guarantee) fee and the right of access to a Court

The study aims the problem of ensuring access to a Court in judicial preliminary proceedings which do not settle the merits of the claim and which impose the necessity to pay a security fee (guarantee), as a criterion of admissibility of this type of preliminary application. In particular, the study focuses on the hypothesis of applications to stay of execution proceedings, regulated by article 718 of the procedural civil code entered into force in 2013 (article 403 of the civil procedural Code of 1864), but it extends the reasoning to other types of preliminary proceedings such as interim measures or measures of constraint. According to Romanian case-law, the applications for eliminating the necessity to pay the security fee (guarantee) or for diminishing the security fee (guarantee) use either the way of asking for legal aid, either the way of asking for the removal of the application of the national law which contains the obligation to pay the security fee, in order to replace it with Article 6 of the European Convention of Human Rights. Even if both procedural ways are susceptible to ensure the right to access to a Court in the hypothesis where the law imposes the necessity to pay a security fee, it is preferable to use the second method which implies the priority of application of the European Convention of Human Rights, using article 20 of the Romanian Constitution and the argument laid down by the Court of Strasbourg in cases like Micallef v. Malta and Central Mediterranean Development Corporation Limited v. Malta (no. 2).