The Posibility Of The Debtor To Request Public Judicial Assistance In The Form Of Bail Exemption Or Reduction During A Provisional Suspension Of The Forced Execution Case

• Author: Bogdan Sebastian Gavrila
• Pages: 22-30

LESIJ NO. XXV, VOL. 2/2018

THE POSIBILITY OF THE DEBTOR TO REQUEST PUBLIC JUDICIA L

ASSISTANCE IN THE FORM OF BAIL EXEMPTION OR REDUCTION DURING

A PROVISIONAL SUSPENSION OF THE FORCED EXECUTION CASE

Bogdan Sebastian GAVRILĂ

Abstract

The situation is becoming more and more common nowadays. A debtor, lacking in sufficient

fonds, is forced to request public judicial assistance from the Court so that he may be exempted from

the obligation of paying bail during a provisional suspension of the forced execution case. The article

shall focus on the applicability of Article 6 of the E.C.H.R., on the national provisions and on whether

or not they may allow such a request to be analysed by th e Court and not be rendered inadmissible.

Some practitioners have viewed this possibility as inadmissible in accordance to our national

legislation. In their view, no legal text allows the debtor to request this type of aid and no legal means

are offered to regulate this type of legal problem. Others have granted public judicial assistance after

careful consideration of the economic situation of the debtor, in regard to the fact that his right to a

fair trial extends even to this particular situation. By not granting him the o pportunity to present his

arguments at this stage of the trial due to a lack of funds, a sort of discrimination may be generated in

favour of the debtors who can financially afford to present their case as opposed to those who cannot.

The article shall thus carefully ponder the interests and o bligations of the parties involved in the trial

so as to establish some useful conclusions or good practices regarding the issue at hand.

Keywords: public judicial assistance, bail exemption, provisional suspension, forced

execution, Court’s role.

1. Introduction

1.1. What matter does the paper

cover?

The paper deals with the situation o f a

forced execution of a legal title. The debtor

considers that his creditor is not entitled to

execute the title and thus calls upon the court

to suspend the execution. However, the

timing is not financially acceptable for the

debtor. He is unable to pay bail, despite the

obligation as laid out in Article 719 par. 7 of

the Civil Procedural Code

1

and thus his

 PhD Candidate, Bucharest University of Economic Studies, Romania, judge (e-mail:

gavrila.bogdan.sebastian@gmail.com).

1

Law no. 134 of July 1, 2010 regarding the Civil Procedure Code, republished in the Official Journal of Romania

no. 247 of April 10, 2015.

request to suspend the execution cannot b e

analysed by the court. Thus, some debtors

have chosen to employ the use of

Emergency Ordinance no. 51/2008,

soliciting public judicial assistance in the

form of the exception or reduction of the bail

fees. The effect of this request means placing

the judge into a situation of not being able to

establish the legal text that may ad dress this

particular issue.

The main objective of the study is to

come accros an acceptable solution for this

legal difficulty, one which may provide the

legal subjec ts with a means of establishing

both a predictable and accessible course o f