28
Mr. Cantos never challenged the fee in the domestic courts.100
that the amount set in the form of filing fees and the corres-
But it must be said
ponding fine are, in the view of this Court, an obstruction to access to the courts.
They are unreasonable, even though in mathematical terms they do represent three
percent of the amount of relief being claimed. This Court considers that while the
right of access to a court is not an absolute and therefore may be subject to certain
discretional limitations set by the State, the fact remains that the means used must
be proportional to the aim sought. The right of access to a court of law cannot be
denied because of filing fees.101 Consequently, with the amount charged in the case
sub judice, there is no relationship of proportionality between the means employed
and the aim being sought by Argentine law. Said amount patently obstructs Mr.
Cantos’ access to the court and thereby violates Articles 8 and 25 of the Convention.
55.
The fact that a proceeding concludes with a definitive court ruling is not
sufficient to satisfy the right of access to the courts. Those participating in the
proceeding must be able to do so without fear of being forced to pay
disproportionate or excessive sums because they turned to the courts. The problem
of excessive or disproportionate filing fees is compounded when, in order to force
payment, the authorities attach the debtor’s property or deny him the opportunity to
do business.
56.
The Supreme Court has also enforced a domestic law that uses the amount of
relief being claimed in a suit as the basis for determining the fees of the intervening
attorneys (Mr. Cantos’ attorneys, the attorneys for the State and those for the
Province of Santiago del Estero), the fees of the State’s technical consultant and of
the experts (supra 43 q.r.s). Based on the same reasoning given in the preceding
paragraphs, the Court considers that calculating regulated professional fees based on
the amount of the litis, as done in this particular case, places a disproportionate
burden on the plaintiff. Ultimately, such fees become an obstruction to effective
administration of justice. The Court must point out that the fees of which this
paragraph speaks are regulated by law, not negotiated between the party and the
corresponding attorneys.
57.
The other issue debated in this case concerning the Argentine Supreme
Court’s proceedings is whether the latter conformed to Articles 8 and 25 of the
American Convention in the sense of guaranteeing the right to a response from the
court authority within a reasonable period of time. This Court observes in this regard
that in principle, the ten years that elapsed between the time Mr. Cantos filed his
complaint with the Supreme Court and the time the latter delivered its ruling that
ended the case in the domestic courts, would mean that the State violated the
reasonable time principle. However, upon careful examination of the history of the
100
Cf. El Caracazo Case, Reparations, supra note 5, par. 77; Hilaire, Constantine and Benjamin et al.
Case, supra note 5, par. 203 and Trujillo Oroza Case, Reparations, supra note 6, par. 61. See also GrecoBulgarian "Communities", Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, pp. 32; Treatment of Polish
Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1931,
P.C.I.J., Series A/B, No. 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932,
P.C.I.J., Series A/B, No. 46, p. 167; I.C.J. Applicability of the Obligation to Arbitrate under the United
Nations Headquarters Agreement. (Case of the PLO Mission) (1988) 12, at 31-2, par. 47.
101
In this regard, see also European Court of Human Rights, Osman v. the United Kingdom,
Judgment of 28 October 1998, Reports 1998-VIII, paragraphs 147, 148, 152.
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