Excessive formalism as a restriction on the right of access to justice

By George Kazoleas, Lawyer

Formalism may be inherent in laws, jurisprudence and in procedural law in particular, since the rules of law are specific forms that must be applied in real situations.

Excessive formalism, however, which characterizes many judicial systems, can sometimes deprive citizens of their right to access the justice in order to assert their rights. Strict procedural rules that most commonly concern deadlines, the limitation period of claims, the method of filing and deficiencies or errors of Court documents deny in essence the right to go to Court.

The European Court of Human Rights (“ECtHR”) has issued a number of judgments condemning the law of several countries for excessive formalism in certain cases.

Despite being a lawyer, he was not allowed to appeal for himself

A typical example is the case of Maširević v. Serbia (No 30671/08, February 11th, 2014, in which the applicant, a practicing lawyer, had brought an action before a local Court seeking payment by a private insurance company for the services he provided under a bargaining agreement.

The Court initially ordered the payment but, following a counterclaim filed by the insurance company, annulled the payment order and declared the contract invalid. The appellate Court upheld that decision and the applicant lodged an appeal with the Supreme Court.

The Supreme Court rejected the appeal on the grounds that the applicant was not entitled to file it, as Article 84 of the Serbian Code of Civil Procedure provides that an appeal may be lodged only by a lawyer and not by the appellant himself. In other words, the following absurdity applied: The lawyer in question could have appealed for his clients, but not for himself. The Supreme Court held that under this law, the parties lose their legal capacity to file an appeal in person, even if they are lawyers themselves.

The ECtHR ruled that this particularly strict interpretation of the procedural rule affected the right of access to a Court. According to the ECtHR, the interpretation of the impugned procedural rule by the Supreme Court did not serve the purpose of ensuring the proper administration of justice and the principle of legal certainty. Furthermore, it deprived the applicant of the right to a full examination of the merits of his allegations. The Court therefore found a violation of Article 6 (1) of the European Convention on Human Rights.

Rejection of an appeal as inadmissible due to incorrect provision of law

In another recent judgment (55997/14 Dos Santos Calado v. Portugal, March 31st, 2020), the Portuguese Constitutional Court had declared the action inadmissible on the grounds that the action was based on an incorrect subparagraph of the Constitutional Law. The ECtHR considered, on the one hand, that the requirement to determine on which paragraph of the legal provision the appeal was based served the legitimate aim of ensuring respect for the rule of law and the proper administration of constitutional justice, on the other hand the Court had to determine whether the restriction was in accordance with the principal of proportionality. The ECtHR noted that although the Constitutional Court could acknowledge the essential pleas in law on which the applicant relied, in its decision on inadmissibility was based solely on the incorrect indication of the legal provision. More specifically, the judges, although they understood the reasons of the appeal, they rejected it over a formal error.

The ECtHR considered that this approach adopted by the Constitutional Court was too formalistic, as it deprived the applicant of the legal remedy provided for in the national legislation.

In fact, the ECtHR noted that the Constitutional Court could ask the applicant to correct the error, as provided by the relevant law, given the fact that the reason for appeal was clear in the application.

The omission of a word from the minutes of the trial deprived the civil party of its participation

In another decision, of 2017, the ECtHR condemned Greece for violating the right of access to justice (Louli-Georgopoulouv. Greece case no. 22756/2009).

In this case, the Greek Court had rejected as inadmissible the representation of the widow of the victim in a criminal trial for fraud. The reason for the rejection was that the word "heir" had not been written in the minutes of the trial. Furthermore, the Court of Appeal rejected the request for correction of the minutes.

The ECtHR upheld the applicant's allegation of excessive formalism of the Greek justice in breach of Article 6 of the European Convention on Human Rights as the rejection of her civil action statement on the grounds that she did not explicitly state that she was her husband's heir constituted a restriction of her right to appeal, which is not justified for reasons of ensuring legal certainty and the proper administration of justice.

Excessive formalism in the present case did not allow the national Court (appellate Court) to take into account that the status of “heir” of the applicant was apparent from the whole case file and from the appealed decision which had accepted the applicant as civil party, thus falling into a rigid formalism that did not serve the interest of any party, as it was noted in the decision of the ECtHR.

The above cases are mentioned only indicatively and are only a drop in the ocean of strict adherence to the letter of the procedural rules. Excessive formalism, the ostentatious neglect of the substance of a case for the sake of sticking to merely legal formalities has as its victim the weakest against the strong and ultimately leads to the incorrect administration of justice.

It is worth mentioning an interesting comment by the American jurist and economist Richard Posner in the famous phrase of the Ancient Greek Sophist and Rhetorician, Thrasimachos: “In all regimes, justice is the same thing: whatever benefits the established regime, which has all the power, and so for anyone who thinks rightly, law is the same everywhere, i.e. whatever serves the interests of the most powerful”. Posner writes: "What Thrasimachos describes is not the meaning of the law but the reality of its absence."

George Kazoleas is Lawyer LLM in Greece & Cyprus

Read more articles by George Kazoleas here

 

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