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)
