Issues related to the appearance, evolution, functions and utility of the legal expenses insurance contracts, especially within the European Union's states

• Author: Tiberiu-Vlad Patancius
• Position: PhD Candidate, Faculty of Law, University of Bucharest (e-mail: avocat.patancius@gmail.com).
• Pages: 34-59

LESIJ NO. XXIV, VOL. 2/2017

ISSUES RELATED TO THE APPEARANCE, EVOLUTION,

FUNCTIONS AND UTILITY OF THE LEGAL EXPENSES

INSURANCE CONTRACTS, ESPECIALLY WITHIN THE

EUROPEAN UNION’S STATES

Tiberiu-Vlad PATANCIUS*

Abstract

This report aims to provide a concise comparative analysis of the features of legal expenses

insurance (also known as insurance for legal protection or LEI), that can be found and have been

adopted in several European ju risdictions (France, England and Wales, Germany, Austria,

Switzerland, Finland etc), as well as in other law systems (Australia and Japan). We are studying the

reasons that led to the implementation of this instrument in each jurisdiction, the evolution of its use

and spread and, also, its effect on counteracting the shortcomings of the systems of justice fees and

legal aid, resulting in providing access to justice, as a part of the right to a fair trial, as it is guaranteed

by art.6 par.1 of the ECHR.

Keywords: the right to a fair trial, access to justice, the European Convention of the Human

Rights, justice fees, sharing of the legal expenses, insurance for legal protection (LEI).

1. The importance of the

research. Introductory concepts

regarding the free access to justice in

the ECHR system. The implicit

limitations of the respective right,

related to the ability of the states to

regulate the duty to pay justice fees, as

well as the instruments they

implement, so that the exercise of „the

discretion” would not be an obstacle

in the way of the access to justice.

This study has a special practical

importance, whereas its conclusions have in

view the actual ways of ensuring access to

* PhD Candidate, Faculty of Law, University of Bucharest (e-mail: avocat.patancius@gmail.com).

1

I.Deleanu, Drepturile fundamentale ale părților în procesul civil ,.Universul Juridic Publishing House,

București, 2008, p.130.

2

The case Golder vs. the United Kingdom, par.28-31, 36,material studied online at December, 16th. 2016 at the

address: http://hudoc.echr.coe.int/eng?i=001-57496.

justice, as a part of the right to a fair trial, as

it is guaranteed by art.6 par.1 of the

European Convention of the Human Rights.

Due to the lack of a Convention's

specific regulation, regarding the content of

the right to a fair trial, this one has been

settled, in a praetorian way, within the

jurisprudence of the Strasbourg Court

1

.

As for the inclusion of the access to

justice a mong the rights guaranteed by the

Convention, which represent the conte nt of

the right to a fair trial, this has been

achieved, for the first time, in the case

Golder vs. United Kingdom

2

, when the

European Court of t he Human Rights noted

the fact that article 6 par.1 „does not state a

right of access to the courts or tribunals in

express terms. It enunciates rights which are

Tiberiu – Vlad PATANCIUS 35

LESIJ NO. XXIV, VOL. 2/2017

distinct but stem from the same basic idea

and which, taken together, make up a single

right not specifically defined in the narrower

sense of the term”. This is the reason why it

has been concluded that the Court should be

the one to decide, by inter pretation of the

content of article 6, if the r ight of access to

court is to be included in the mentioned

content.

It has been noted

3

in t he sa me above

mentioned case that the Strasbourg Court

admitted that the right of access to j ustice

cannot be an absolute right, as it is subject to

some limitations

4

. The Court established that

those limitations are i mplicit, as the

settlement of the right of access by the states

is compelled by its very nature and the

differences in settlement will be determined

by the available resources and specific needs

of each nation (more precise, its’ society)

5

.

These limitations are the expression of

the states' sovereignty, this being the basis

for granting them an „appreciation margin”

6

.

The appreciation margin (discretion)

has been defined as the recognized ability of

the states to exert their national sovereignty,

in the way of limiting the revaluation of

some of the fundamental rights

acknowledged by the Convention. The

jurisprudence of the European Court has

been permissive and constantly granted to

the signatory states „some discretionary

3

C.Bîrsan, Convenția Europeană a drepturilor omului. Comentariu pe articole. Ediția 2, C.H.Beck Publishing

House, Bucharest, 2010, p.430.

4

”as this is a right which the Convention sets forth (see Articles 13, 14, 17 and 25) (art. 13, art. 14, art. 17, art.

25) without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very

content of any right, for limitations permitted by implication”, Golder case, precit, #38.

5

„Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted

by implication since the right of access "by its very nature calls for regulation by the State, regulation which may

vary in time and in place according to the needs and resources of th e community and of individuals"…”, The case

Ashingdane v. the United kingdom, par.57, material studied online, at 04.01.2017, at the address:

http://hudoc.echr.coe.int/eng?i=001-57425 .

6

In this regard, there are of utmost importance (relevance), the reasons stated, both, in the previous case (Ashingdane)

and, also, in the case Cordova v. Italy (no.1, 40877/98), par.54. The case Cordova v. Italy, studied at 26.12.2016, at the

address: http://hudoc.echr.coe.int/eng?i=001-60913 .

7

I.Deleanu, Instituții și proceduri constituționale în dreptul român și în dreptul comparat, C.H.Beck Publishing

House, București, 2006, p.318.

8

The case Ashingdane v. the United Kingdom, cited above, par. 57.

9

Ibidem.

powers”, „a certain freedom” or „an

estimation power”. This Court's approach

has been qualified as „allowable and even

necessary”, in the context of numerous

normative acts, with interpretable

provisions

7

.

The ap preciation margin is shown by

the very settle ment of certain time limits of

elapse and prescription, levying of legal

taxes related to the justice activity or by the

requirement of covering cer tain preliminary

procedures, as a prior condition for the

referral to the court.

On another case

8

, it was noted that the

appreciation margin must be exerted with

caution, so that it would not alter the very

substance of the right guaranteed by the

Convention.

Even if the Strasbourg Court is the

authorized forum to observe the compliance

with the provisions of the Convention, this

does not also imply empowerment of the

Court to evaluate and decide upon the best

solution to apply in the specific case.

On the same occasion of solving the

Ashingdane case

9

, there were noted the

criteria that states must sat isfy to exert „the

appreciation margin” (hence, the name of