Taxing Access to Justice: Legal Analysis of Judicial Fees in Brazil and the Dialectics of Legal Aid in Comparative Perspective

Abstract

This article examines the relationship between the tax system, judicial financing, and the fundamental right of access to justice in Brazil, situating the analysis within the international human rights law framework established by the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR). The analysis begins with the constitutional characterization of judicial fees as a linked tax under Article 145(II) of the 1988 Federal Constitution and engages the doctrinal debate over whether the claim value, as a proxy for wealth, constitutes a constitutionally sound tax base. A law-and-economics framework situates court fees as price signals, while practical observations drawn from fifteen years in Brazilian public service illuminate the structural failures of the legal aid regime. The IACtHR's binding jurisprudence in Advisory Opinion OC-11/90 and Cantos v. Argentina, and the ECtHR's proportionality standard in Kreuz v. Poland, provide the supranational normative backdrop. A comparative study contrasts Brazilian solutions with those of the United States, the United Kingdom, Germany, and Portugal, generating critical findings on the risks of mechanically transplanting European fee models to a developing country context. The article concludes with a reform proposal grounded in economic and legal rationality: moderate court fees with mandatory annual monetary adjustment, combined with objective and constitutionally proportionate criteria for the granting of legal aid.