Articolul 80 alin. (4) din Codul de procedură civilă şi obligaţiile pozitive ale statului în materia procesului echitabil

Rezumat

Among the positive obligations that States have under the provisions of Article 6 para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms lies also the obligation to provide, in certain conditions, free judicial assistance for the party whenever the assistance of a lawyer is mandatory or the complexity of the case reclaims it. The Romanian Constitutional Court has already held that the legal aid mechanism does not converge with the state’s positive obligations regarding the first hypothesis and, for the same reasons, a similar conclusion must be drawn for the second hypothesis. Given the situation, in the current paper we set out to analyze if the provisions of Article 80 para. (4) of the Civil Procedure Code could be seen as an alternative remedy to legal aid and to underline any deficiencies. In essence, we concluded that, under the said rule, the Court could appoint for any party a judicial representative in similar circumstances to those held by the European Court of Human Rights as reclaiming a positive obligation of the state to appoint a lawyer ex officio. Nevertheless, the norm is still deficient in some regards, as those referring to the powers of the representative in the trial and the duration of representation.