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
SUMMARY

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 jurisdictions (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 ... (see full summary)

 
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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

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