State Fees: Is the Legislator Free in Setting the Rates of State Fees? An Estonian Example

Author:Kai Härmand
Position:Deputy Secretary General on Legal Policy, Ministry of Justice
Kai Härmand
Deputy Secretary General on Legal Policy
Ministry of Justice
State Fees: Is the Legislator
Free in Setting the Rates
of State Fees?
An Estonian Example
1. Introduction
The fundamental principles of a fair trial that are largely accepted across national legal systems stipulate
that everyone is entitled to a fair trial within reasonable time by means of an impartial tribunal that has
been established by law.*1 The same principles are stipulated in the Constitution of the Republic of Esto-
nia.*2 Effective access to justice constitutes a part of these fundamental rights. The right to a fair trial is
worthless if one cannot access the judicial system; hence, one of the core obligations of a state is to provide
a justice system that is available to those who need it. Constitutional rights, in German legal tradition and
according to the European Court of Human Rights (ECtHR) itself, operate vertically, restricting a state’s
actions and obliging the state to ensure that individuals’ basic human rights are honoured.*3
The right to a fair trial and access to justice as a fundamental right can, however, be regulated or other-
wise restricted by law. However, the legal boundaries must be reasonable, because the civil procedure has
many functions. In the Nordic countries, it is seen mostly as a format for con ict resolution, but a fairly wide
perspective is adopted, and the procedure has social aspects too.*4 It is not only used for con icts between
parties; it is applied also for wider legal disputes, and the aim of any proceedings is to strengthen substan-
tive law, giving the parties and the whole of society a complete guide to behaving correctly in certain legal
situations. In light of this approach, the right and opportunity for an individual to defend his or her own
rights and freedoms in court have a much wider value.*5 Accordingly, the state has an even stronger obliga-
tion to provide legal options for obtaining access to justice.
Restrictions on exercising the right to be able to access the justice system may be administrative in nature.
State fees are one of the ways in which the number of cases, and the workload of the courts, can be reduced.
1 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 6.
2 The Constitution of Estonia [‘Eesti Vabariigi põhiseadus’], §§15, 24, and 146. – RT 1992, 26, 349; RT I, 2007, 43, 311 (in
3 A. Barak. Constitutional rights and private law. – D. Friedman (ed.). Human Rights in Private Law. Oxford and Portland,
Oregon: Hart Publishing 2001, p. 24.
4 B. Lindell. Partsautonomins gränser. Hallsberg: Iustus, 1988, p. 87.
5 L. Ervo (ed.). The Europeanisation of Procedural Law and the New Challenge to Fair Trial. Groningen: Europa Law Pub-
lishing 2009, p. 24.

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