Praxis Watch

Thursday, 19 February 2015

The Constitutional Court Dismissed the Initiative for the Assessment of the Constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure which Limits the Right to the Access to Court

The Constitutional Court has dismissed Praxis initiative for the assessment of the constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure, submitted in June 2014.

Specifically, Article 85, Paragraph 2 of the Law on Civil Procedure stipulated that “the representative of an individual must be an attorney-at-law, a close relative, brother, sister or a spouse, or the representative of the legal aid service in the local self-governance who is a graduate lawyer with the bar exam.

With this, the legislator imposed limitations that are early and disproportional limitation of the right to the access to court for certain groups of people. These limitations affect the very essence of the right to access to court. The stated limitations are not either necessary or legitimate or proportional and they are in contradiction with the Article 20 of the Constitution, and thus question the exercise of the right to equal protection of the right before the court from the Article 36, Paragraph 1 of the Constitution for whole groups of people, such as legally invisible persons, single people and common-law partners who cannot represent each other.

In the decision from 2013, the Constitutional Court, assessing the constitutionality of the previous Article 85 of the Law on Civil Procedure (by which lawyer monopoly was established) took the view that there is no constitutional ground for prescribing restrictions in regard to who may be the party’s proxy in the civil procedure. 

The Constitutional Court, in its latest decision, rejecting the Praxis initiative, actually departed from its view which it had taken in regard to the same issue in its decision from 2013.

However, in the explanation of the decision, the Constitutional Court noted the problems pointed at by Praxis in its initiative, but it described such problems as legal gaps that need to be filled in in the procedure of implementation of the law.

These views of the Constitutional Court will not contribute to exercise of the right to access to court in a manner prescribed by the European Convention on Human Rights and the Constitution of Serbia.

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