This article aims at analysing the notion of extinctive prescription, particularly in regard to its starting point, in cases of contradictory jurisprudence due to unclear legal provisions.
Time waits for no man, even in the field of civil law. The notion of ‘period of prescription’, similar to that of statute of limitations operating in common law systems, represents a period of time in which a lawsuit can be filed.
In Romanian law, Decree no. 167 of 1958 contained the baseline rules on this matter. Despite the entry into force of the New Civil Code, which contains new provisions, the previous law is still applicable to the periods of prescription that began before the date of the new law’s entry into force.
According to the doctrinarian interpretations of the law, the period of prescription has its starting point at the time when the right to file a certain lawsuit is born. This right to action has two dimensions: a material and a procedural one.
The procedural right to action refers to the physical possibility of each individual to register a memoir at the competent Court and thus sue another party, correlated with the obligation of those in charge to register the complaint and have it reviewed by a judge. On the other hand, the right to action in a material understanding refers to the right of an individual to have his/her complaint examined by a Court and receive a verdict, benefiting from the constraining power of the State to satisfy his/her claims. It is generally accepted that the prescription terminates the right to action in a material sense, which means that every individual is free to file any lawsuit; however, any complaint filed after the passing of the period of prescription shall be deemed tardy and dismissed by the Court without analysing the legal dispute at stake.
The moment when the right to action is born is usually when the underlying, subjective right, that the person wishes to defend in court, is overstepped, denied or challenged. However, there are situations when the law allows a lawsuit to be filed, even in lack of a disrespect of that particular right (e.g. in the case of an illicit deed, a lawsuit can be filed in order to obtain reparations as soon as the full extent of the damage is known by the plaintiff). Generally, this moment is the birth of that particular right or, when it is affected by a term or condition in order for it to be effective, the moment when the term is met or the condition fulfilled (Nicolae, 2004). For instance, the right to action of a creditor wanting to obtain the execution of his debtor’s obligation is born at the time when that particular obligation is due to be performed – i.e. the due date.
However, there are situations when the existence or the extent of a particular right is disputed, primarily due to the unclear legal provisions instating it, the jurisprudence being divergent. Therefore, there is no guarantee as to what the outcome of a lawsuit aiming at protecting or at harnessing such a right might be. In such a situation, I would argue that the period of prescription has its starting point at the moment when a clear, unequivocal understanding of the law is established, either by the means of an amendment to the previous law or by an official interpretation of it (for instance, by a ‘referral in the interest of the law’ of the Supreme Court). Such an interpretation is justified for two main reasons: firstly, due to the purpose of the period of prescription, and secondly, in order to effectively respect the right to access to justice of each individual.
The purpose of the prescription
This aim is twofold: on one hand, setting a time limit for the exercise of a certain right encourages each person to handle their affair as soon as possible, thus clarifying the legal situation; on the other hand, it seeks to protect the security of the legal positions of parties, and prevent them from living in a constant state of uncertainty as to when a lawsuit might be filed against them, being constrained to the execution of a certain (pecuniary) obligation. By this logic, ’from all points of view, the rule regarding the commence of the period of prescription at once with the birth of the right to action is natural, the premises of applying the retributive effect of the extinctive prescription being the existence of the possibility to act in order to defend a certain right, clarify a legal situation or harness a legitimate interest’ (Nicolae, 2004). Therefore, a person filing the lawsuit after the passing of the period of prescription is one that has neglected their own interest, being careless in their passive state.
Not the same can be said in the case currently analysed. For starters, it is important to mention the important impact of the principle of res judicata in the matter. Irrespective of the uncertainty of the law, if a lawsuit were to be filed in such a situation, the definitive solution given by the Court could no longer be contested, even if the law were to change. Therefore, any legal action implies a certain risk to the individual, who cannot rely either on the legal provisions or the existing case law in order to predetermine the outcome of their trial. In such a situation, there can be no presumption in the sense that the one missing the period of prescription has done so out of negligence, and thus should be sanctioned. On the contrary, the delay has resulted from the lack of an actual, effective possibility to act as to defend the right, the outcome of such an act depending entirely on the interpretation of the matter given by the judge, therefore on what could be considered pure arbitrariness.
The access to justice
According to article 6 of the ECHR, the free access to justice refers to ‘the possibility of each person to file a legal suit, even one that lacks legal ground, coupled with the state’s duty to deliver a sentence in the case’ (Chiriță, 2008). According to legal theory based on the ECtHR’s rulings, establishing a period of prescription is an acceptable breach of this right, as long as the term is both proportional and reasonable (Chiriță, 2008).
Article 23 para. 12 of the Romanian Constitution enshrines the legality of any incrimination, principle upheld by the ECtHR in its case law. By means of interpretation, it has gained a multilateral dimension, including the requirement than any legal provision must be predictable to individuals, which is met when they can determine in advance, relying on the legal texts and the existing case law on the matter, the manner in which a certain provision can be applied (ECtHR, case of Kokkinakis v. Greece, 1993). Although direct reference is only made to the field of criminal law, upholding the rule of law requires that any legal provision that infringes upon a person’s rights should meet the same criteria, as it is absurd to demand of a person the obey a law that they cannot comprehend.
In this light, when the legal provisions are unclear, in the absence of a well established jurisprudence, I believe that demanding of a person to act as to defend a right that is uncertain, thus possibly forfeiting their chances, is an illegitimate act of the state. Therefore, sanctioning those that were not willing to subject themselves to the possible random outcome of a lawsuit by the means of prescription is an unreasonable infringement upon their right to access justice. The period of prescription should only begin at the moment when a clear interpretation of the law is established, from that point on the person carrying the blame for their lack of diligence in guarding their own rights.
