At the session held on 23 May 2013, the Constitutional Court established that the provisions of the Article 85, Paragraph 1 in the part stating “who must be the lawyer”, Article 85 Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law were unconstitutional.

The decision of the Constitutional Court came into force on 5 June 2013 and from that day, the parties in a civil procedure may choose any person to represent them, not exclusively attorneys-at-law as it had been prescribed before the decision of the Constitutional Court. Besides, the decision of the Constitutional Court also found the Article 85, Paragraph 2 of the same Law to be unconstitutional, as well as the whole chapter of the Law that regulated the proceedings for protection of collective rights and interests.

As a reminder, at the beginning of 2012, the Coalition for Access to Justice submitted an initiative for assessing the constitutionality of certain provisions of the Law on Civil Procedure. In January 2013 the Constitutional Court brought a decision on initiating a procedure for establishing unconstitutionality of the provisions of Article 85, Paragraphs 1 and 2 and Articles 494 through 505 of the Civil Procedure Law and their non-compliance with the ratified international treaty. On the other hand, the same decision of the Constitutional Court has rejected the initiative in the part relating to Article 170 and 193 of the Law.

In the explanation of the decision establishing unconstitutionality of the provision of the Article 85 Paragraph 1 in the part stating “who must be the lawyer”, the Constitutional Court has stated that the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe do not explicitly mention the right to access to court, but that this right is inseparable from the guarantees provided in the Article 6, Paragraph 1 of the European Convention on Human Rights.

Besides, in the explanation, the Constitutional Court also stated that prescribing the obligation that a party must be represented exclusively by a Bar-admitted lawyer poses the obligation on the State, on the other hand, to secure a system in which one can effectively enjoy the right to legal aid. Contrary to that, and since the Law on Free Legal Aid from the Article 67 of the Constitution has not been adopted, the Court has established that the obligation of representation by a Bar-admitted lawyer in civil proceedings represents a form of indirect discrimination of citizens on the grounds of their financial position.

Since the deprivation of the possibility of a free choice of a proxy, that is, legal conditioning of a party, who does not wish or for whatever reason cannot undertake actions on his/her own in the procedure until the final decision has been brought, to have a proxy who is a Bar-admitted lawyer, calls into question the equality of parties and limits the right to access to court and the right to legal aid, the Constitutional Court has established that limitations from the Article 85, Paragraph 1 of the Civil Procedure Law in the part stating “who must be a lawyer” is not legitimate, proportional or necessary. Thus, it is not in accordance with the Article 20 of the Constitution or the right to a fair trial from the Article 32 of the Constitution. It further does not comply with the Article 36 Paragraph 1 of the Constitution which envisages equal protection of rights before courts, and represents a form of indirect discrimination on the grounds of financial position which is prohibited by the Article 21 of the Constitution. Due to interrelatedness of Paragraphs 1 and 2 of the Article 85, the Constitutional Court has established that the Paragraph 2 of the same Article of the Civil Procedure Law is unconstitutional.

In the part of the decision referring to the chapter of the Civil Procedure Law that regulated the proceedings for protection of collective rights and interests, the Constitutional Court has found that the provisions of the Articles 494 through 505 of the Law do not prescribe the situations in which a civil proceeding has a character of a dispute on collective rights that would be conducted according to the rules of a separate procedure prescribed in this chapter of the Law. Furthermore, the Court has explained its decision by the fact that, through the provisions of the Articles 494 through 505, the Law did neither establish the content of the phenomenon of collective rights and interests nor referred to the laws that regulate these rights, nor removed vagueness and imprecision of proceeding so that it could certainly be established what collective rights and interests are protected through a separate proceeding prescribed. What’s more, the Constitutional Court has established that these provisions do not provide for the possibility to determine their true meaning and content with certainty. Bearing this in mind, the Constitutional Court is of the opinion that these provisions are constitutionally disputable in terms of their clarity, availability and acceptability, and, thus, not in compliance with the Constitution and ratified international treaty.

In order to consider a general act a law, not only formally but also in terms of its content, the Constitutional Court has once again stated that it is necessary that the law and its norms are sufficiently precise, clear and predictable so that those to whom the law refers may comply their behaviour to the law, so that they are not deprived of exercise of their guaranteed rights and legal interests because of unclear, imprecise or even missing norms. Taking all this into consideration, the Constitutional Court has established that provisions of the Articles 494 through 505 of the Civil Procedure Law are not in compliance with the Constitutions and ratified international treaty.


Coalition for Access to Justice:
Centre for Advanced Legal Studies
Civil Rights Defenders
CHRIS – the Network of Committees for Human Rights in Serbia (Human Rights Committee Nis, Human Rights Committee Valjevo, Human Rights Committee Negotin, Vojvodina Centre for Human Rights Novi Sad, Citizens' Forum Novi Pazar)
Humanitarian Law Centre
Youth Initiative for Human Rights
Independent Journalists' Association of Vojvodina
Sandzak Committee for Protection of Human Rights and Freedoms
Praxis