At the end of 2012, in several administrative disputes that Praxis has been conducting on behalf of legally invisible persons or citizens who initiated procedures for exercise of economic and social rights before administrative bodies, the Administrative Court of Serbia ordered the parties in the dispute to provide representation by an attorney-at-law, invoking the approproiate application of the Civil Procedure Law. Bearing in mind that the Article 74 of the Law on Administrative Disputes refers to appropriate implementation of the provisions of the Civil Procedure Law in administrative or court procedure, the decision according to which a party must have an attorrney-at-law as a proxy also extends to procedures in administrative disputes. The issue of the appropriate implementation of the Civil Procedure Law in administrative disputes with regard to provisions related to the proxy is undisputable, both from the standpoint of the application of the law  and in the legal theory. However, according to the interpretation of the European Court of Human Rights, the right to access to court is inseparable from the right to a fair trial from the Article 6 of the European Convention, as stated in the judgement Golder vs. United Kingdom (App. No 4451/70). Thus, prescribing the obligation on the parties to be represented by an attorney-at-law in the administrative disputes also imposes the obligation on the state to find a model for free representation and to enable the most vulnerable categories of population to exercise their rights before courts equally as other citizens of the Republic of Serbia. Despite this obligation and necessary regulation of the issue of representation of the parties in civil law procedures and administrative or court procedures, Law on Free Legal Aid has not been adopted yet.

Since a great number of administrative or court procedures refers to disputes initiated when citizens cannot exercise some of their rights before state administrative bodies, such as the right to be recognized as a person before the law, the right to citizenship, the right to cash social assistance or protection against forced evictions, keeping the provisions related to representation exclusively by an attorney-at-law in the Civil Procedure Law has extremly negative implications for exercise of human and minority rights in the Republic of Serbia. In practice, such a solution leads to a situation in which the citizens who do not have funds to pay for attorneys’ fees and who cannot directly undertake actions in a procedure cannot enjoy legal protection before courts even in very simple administrative matters.

Besides, such a solution leads to an absurd situation that the citizens who initiate procedures for exercise of the right to cash social assistance must have an attorney-at-law as a proxy in cases of "silence of administration" in order to be able to, depending on a court decision, exercise that right in an administrative or court procedure.

At the end of 2012, in several administrative disputes that Praxis has been conducting on behalf of legally invisible persons or citizens who initiated procedures for exercise of economic and social rights before administrative bodies, the Administrative Court of Serbia ordered the parties in the dispute to provide representation by an attorney-at-law, invoking the approproiate application of the Civil Procedure Law. Bearing in mind that the Article 74 of the Law on Administrative Disputes refers to appropriate implementation of the provisions of the Civil Procedure Law in administrative or court procedure, the decision according to which a party must have an attorrney-at-law as a proxy also extends to procedures in administrative disputes. The issue of the appropriate implementation of the Civil Procedure Law in administrative disputes with regard to provisions related to the proxy is undisputable, both from the standpoint of the application of the law  and in the legal theory. However, according to the interpretation of the European Court of Human Rights, the right to access to court is inseparable from the right to a fair trial from the Article 6 of the European Convention, as stated in the judgement Golder vs. United Kingdom (App. No 4451/70). Thus, prescribing the obligation on the parties to be represented by an attorney-at-law in the administrative disputes also imposes the obligation on the state to find a model for free representation and to enable the most vulnerable categories of population to exercise their rights before courts equally as other citizens of the Republic of Serbia. Despite this obligation and necessary regulation of the issue of representation of the parties in civil law procedures and administrative or court procedures, Law on Free Legal Aid has not been adopted yet.

Since a great number of administrative or court procedures refers to disputes initiated when citizens cannot exercise some of their rights before state administrative bodies, such as the right to be recognized as a person before the law, the right to citizenship, the right to cash social assistance or protection against forced evictions, keeping the provisions related to representation exclusively by an attorney-at-law in the Civil Procedure Law has extremly negative implications for exercise of human and minority rights in the Republic of Serbia. In practice, such a solution leads to a situation in which the citizens who do not have funds to pay for attorneys’ fees and who cannot directly undertake actions in a procedure cannot enjoy legal protection before courts even in very simple administrative matters.

Besides, such a solution leads to an absurd situation that the citizens who initiate procedures for exercise of the right to cash social assistance must have an attorney-at-law as a proxy in cases of "silence of administration" in order to be able to, depending on a court decision, exercise that right in an administrative or court procedure.

Jasmina Mikovic, Deputy Executive Director of non-governmental organization Praxis, says for Daily Danas that Praxis has joined the action "I am Roma and I exist" implemented by the Police Department of the City of Belgrade in cooperation with OSCE Mission to Serbia.

The aim of this project is to raise the awareness of the Roma population about the importance of possession of personal documents, which is the precondition for the exercise of fundamental human rights. The project activities include visits to informal Roma settlements in the territory of the Municipalities of Palilula and Cukarica. In addition, a bilingual information bulletin has been prepared with an aim to point out to the importance of the possession of personal documents and relevant procedures for their obtaining. 

Praxis lawyers draw up and submit requests and other submissions to relevant state bodies and institutions representing thus the interests of persons who are not able alone to protect and exercise their rights before the stated bodies nor are they able to pay lawyers' services of representation in various procedures, says Jasmina Mikovic.

 Read in Danas

The Rulebook of procedure for registration of permanent residence at the address of the social welfare center came into force at the beginning of December 2012, but the Ministry of Labour, Employment and Social Policy of the Republic of Serbia issued the Instruction for proceeding to be followed when registering the permanent residence at the address of social welfare center (SWC). The act of the Ministry prescribes the guidelines for  coordination of the activities of the competent bodies in the concerned procedure, but the interpretation of the provision of the Instruction that envisages the conditions for the registration of the permanent residence at the address of SWC turned out to be disputable. Specifically, in addition to the evidence on identity of a person whose request is being decided on, the disputable provision requires enclosing “evidence by the competent body of internal affairs that permanent residence cannot be registered pursuant to the Article 11, Paragraph 2, Items 1, 2 and 3 of the Law on Temporary and Permanent Residence of Citizens” (on the basis of the ownership right over the apartment, lease contract over the apartment or any other legal basis).

On 23 January 2013, Praxis’ representatives attended the meeting held in the premises of the Social Welfare Centre Bujanovac where the possibilities of the simplification and more efficient conducting of the initiated procedures of registration of permanent residence at the address of this SWC were considered. Due to uncertainty related to the interpretation of this disputable provision, Praxis addressed the Police Station in Bujanovac, which interprets the envisaged evidence as the final decision rejecting the request for determination of permanent residence. The Administrative Affairs Directorate of the Ministry of Interior of the Republic of Serbia has the same opinion of which Praxis was informed in a phone conversation.

Conducting the administrative procedure before the competent body of the Ministry of Interior for receiving the final decision rejecting the request for registration of permanent residence, which would serve as the evidence as requested by  the Instruction, is a time-consuming process. The previous experience points out that the same administrative procedures most often last about three months (without the period necessary for the onset of effectiveness), though there are procedures lasting more than even two years in practice. It is clear that acting in the envisaged manner will cause delays in procedures to an unacceptable extent. Such situation does not contribute to the intentions to solve the problem of persons without the permanent residence as efficiently as possible.

Conducting of a significant number of procedures of registration of permanent residence at the address of SWC is the precondition for the valuation of the effect of the concerned regulation. However, it is necessary to point out to the lacks of adopted acts at the very beginning of their implementation. Urgent removal of doubts and ambiguities is a must. In addition, the basic goals of all responsible bodies should include the simplification of administrative procedures and taking steps to make them more efficient, particularly because the problem of impossibility of the registration of permanent residence affects mainly the most vulnerable categories of citizens.

Download: Instruction for Proceeding in the Procedure for Registration of Permanent Residence at the Address of Social Welfare Centre

For more information see the announcement: Additional Complications Related to Registration of Permanent Residence at the Address of Social Welfare Centre 

Praxis has signed the Memorandum of Understanding with the Project “Second Chance” – Systemic Development of Elementary Practice Based Adult Education in Serbia with an aim to continue the successful cooperation dating back to 2011.

Project “Second Chance” has been implemented in Serbia since September 2010 and was initiated by the Ministry of Education, Science and Technological Development in cooperation with the European Union in order to establish the system of functional elementary education of adults.

The cooperation between Praxis and the Project “Second Chance” reflects in ensuring the right to education and inclusion into the educational system for the adults who have not finished elementary school with the final aim of social inclusion. In addition, Praxis will also provide legal representation in administrative and court procedures for the regulation of the personal status and in the procedures of obtaining personal documents.

The cooperation on achievement of the goals defined by this memorandum will be realized during the whole period of the Project “Second Chance”, that is by September 2013.

The Law on Amendments to the Law on Non-Contentious Procedure came into force on 8 September 2012, which is a step forward towards the resolution of the problem of legally invisible persons, at least in the part referring to the possibility of the registration in birth registries. The stated act standardizes the new form of non-contentious procedure before courts – procedure for determination of date and place of birth.

Although it seemed that the law would change the legally unbearable situation, which was in place before its adoption, there is a question on how to exercise the right to citizenship. Specifically, the Article 71k, Paragraph 2 of the Law on Amendments to the Law on Non-Contentious Procedure envisages that the “body competent to conduct the procedure for acquisition of citizenship of the Republic of Serbia is not bound by the final decision on date and place of birth”. It thus questions the effectiveness of the court decision, since based on the law, the same decision is binding on one but not on the other administrative body. The goal of this provision is fully unclear, particularly if we have in mind that the Law on Amendments to the Law on Non-Contentious Procedure envisages that upon receiving the motion for determination of the fact of birth, the court addresses the very body of internal affairs in order to check out if there are data about the time and place of birth of persons whose birth is being proved. In addition, it has been envisaged to conduct special checks in case of suspecting that the person whose birth is being determined has had temporary residence abroad.

Praxis will monitor the implementation of the Law in practice, as it is obvious that the issue of acquisition of citizenship is not clearly and precisely regulated, and therefore there is a danger that upon the determination of time and place of birth, persons will remain at risk of statelessness.

See:Proposal for the Law on Amendments to the Law on Non-Contentious Procedure

Sixty seven non-governmental organizations have called upon the legislative authority to consider amendment of the Article 85 of the Draft Civil Procedure Law that prevents the most vulnerable categories of population to have access to court.

In particular, the proposed legal solution enables the citizens to undertake actions in a procedure either personally or through a proxy who has to be a Bar-admitted lawyer. Thus, the most vulnerable citizens of Serbia who are physically unable to access court or do not have financial resources to come to court will be deprived of the opportunity to undertake any legal actions if they do not have the money to pay for Bar-admitted lawyers’ fees. Paragraph 2 of the stated Article is in direct contravention of the constitutional guarantee that everyone has the right to appeal or to other legal remedy against a decision that establishes one’s right, obligation or legally based interest. Since the Constitution of the Republic of Serbia did not prescribe any restrictions but guaranteed the right to legal remedy to everyone, the suggested solution, which envisages that a party must be represented by a Bar-admitted lawyer in the procedure, directly violates the right to legal remedy guaranteed by the Constitution and the Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Furthermore and particularly bearing in mind the situation in which the work on drafting the Law on Free Legal Aid is still in process and in which the working group preparing this law has not yet taken the final position as regards the circle of potential providers of free legal aid, the Article 85 prejudicates that associations of citizens, trade unions, legal clinics within faculties and other potential legal aid providers will not be in fact able to provide free legal aid. Thus, the residents of informal settlements, persons with disabilities, internally displaced persons, survivors of domestic violence and other categories of socially most vulnerable citizens will practically be left without the right to access to court.

The constitutional provision that prescribes that legal aid is provided by the Bar-admitted lawyers and legal aid services established within the local self-government units represents a level of protection of right to legal aid guaranteed by the state, but cannot be interpreted in a way so as to prohibit activities of other legal aid providers. In addition, such solution also violates the provisions of the Article 20, Paragraph 2 of the Constitution of the Republic of Serbia that states that the achieved level of human and minority rights cannot be reduced.

For all the above-mentioned, non-governmental organizations call upon the responsible state bodies to consider amendment to the aforementioned legal provision which, if adopted, will prevent the most vulnerable and the poorest citizens of Serbia from exercising the right to access to court guaranteed by the Constitution.

Download the document: A Call to Legislative Authority to Consider Amendment of the Article 85 of the Draft Civil Procedure Law (Serbian only)

Following the submission by the Coalition for Access to Justice of the Initiative for reviewing compliance of certain provisions of the Civil Procedure Law with the Constitution, general rules of international legislation and the ratified international treaty – European Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitutional Court brought a decision initiating the procedure for establishing non-constitutionality of the provisions of the Law and their non-compliance with the ratified international treaty.

On 24 January 2012, the Coalition for Access to Justice submitted the initiative for constitutional review of the articles 85, 170, 193, 499 and 500 of the Civil Procedure Law. The Constitutional Court initiated the procedure for establishing non-constitutionality of the Article 85, paragraph 1 that restricts the right to access to court to citizens who cannot afford to pay for attorneys’ fees. In September 2011, during the procedure for adoption of the Civil Procedure Law, the initiative for amendment of this provision was supported by 67 non-governmental organizations, Ombudsperson, Association of Public Prosecutors and Deputies to Public Prosecutors of Serbia and the Judges’ Association of Serbia. Besides, the Constitutional Court initiated the procedure for constitutional review of the Chapter 36 of the Civil Procedure Law that regulates the procedure for protection of collective rights and interests of citizens.

In the part relating to articles 170 and 193 of the Law, the Initiative was rejected.

Coalition for Access to Justice represents informal gathering of organizations for protection of human rights and consists of the Center for Advance Legal Studies, Civil Rights Defenders, Humanitarian Law Center, Youth Initiative for Human Rights, CHRIS – Network of the Committees for Human Rights in Serbia, Independent Journalists’ Association of Vojvodina, Praxis, Sandzak Committee for Protection of Human Rights and Freedoms

You can see the announcement about the submitted initiativehere

Following the submission by the Coalition for Access to Justice of the Initiative for reviewing compliance of certain provisions of the Civil Procedure Law with the Constitution, general rules of international legislation and the ratified international treaty – European Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitutional Court brought a decision initiating the procedure for establishing non-constitutionality of the provisions of the Law and their non-compliance with the ratified international treaty.

On 24 January 2012, the Coalition for Access to Justice submitted the initiative for constitutional review of the articles 85, 170, 193, 499 and 500 of the Civil Procedure Law. The Constitutional Court initiated the procedure for establishing non-constitutionality of the Article 85, paragraph 1 that restricts the right to access to court to citizens who cannot afford to pay for attorneys’ fees. In September 2011, during the procedure for adoption of the Civil Procedure Law, the initiative for amendment of this provision was supported by 67 non-governmental organizations, Ombudsperson, Association of Public Prosecutors and Deputies to Public Prosecutors of Serbia and the Judges’ Association of Serbia. Besides, the Constitutional Court initiated the procedure for constitutional review of the Chapter 36 of the Civil Procedure Law that regulates the procedure for protection of collective rights and interests of citizens.

In the part relating to articles 170 and 193 of the Law, the Initiative was rejected.

Coalition for Access to Justice represents informal gathering of organizations for protection of human rights and consists of the Center for Advance Legal Studies, Civil Rights Defenders, Humanitarian Law Center, Youth Initiative for Human Rights, CHRIS – Network of the Committees for Human Rights in Serbia, Independent Journalists’ Association of Vojvodina, Praxis, Sandzak Committee for Protection of Human Rights and Freedoms

You can see the announcement about the submitted initiativehere

Praxis, in cooperation with United Nations High Commissioner for Refugees (UNHCR), organized a round table Implementation of the Law on Non-Contentious Procedure and the Law on Temporary and Permanent Residence of Citizens. The roundtable was an opportunity to present adopted legal solutions aimed at enabling the facilitated manner of proving the time and place of birth of persons who are not registered in birth registry books, at determination of the permanent residence at the address of social welfare centres, and also at exchanging opinions and presenting examples of good practice and already noticed problems related to the implementation of the stated laws.

The speakers were Eduardo Arboleda, Chief Representative in the UNHCR in the Republic of Serbia, Gordana Stamenovic, State Secretary in the Ministry of Justice and Public Administration, Goran Basic, Deputy Ombudsperson, Davor Rako, Associate Protection Officer in UNCHR Belgrade, Natasa  Markovic, Head of the Citizenship Department in the Ministry of Internal Affairs, and Ivana Stankovic, Praxis’ Program Coordinator. About 40 participants, representatives of stated bodies, international and non-governmental organizations gathered at the roundtable.

Report from the roundtable can be downloaded here
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