By the decision that came into force on 5 June 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.

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 has 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. The Constitutional Court has further 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; that it had not removed vagueness and imprecision of proceeding so that it could be established with certainty 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.

For more information, see: Constitutional Court Established that the Provisions of the Article 85, Paragraph 1 Stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law are not in Accordance with the Constitution

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

"Serbia has emerged from its turbulent past but is host to the largest Roma community in Europe. As the city of Belgrade embarks on large scale infrastructure development, many Roma families grapple with basic needs such as housing. But headway is being made in providing adequate accommodation for the Roma, who often live on the margins of society." UN HUMANRIGHTS

Danilo Curcic, Praxis Legal Analyst, speaks about the access of Roma to the right to adequate housing, in the video of UN HUMANRIGHTS "New homes for Roma families in Serbia" posted on YouTube.

See the video

On 19 April 2013, the training on registration in birth registry book was held for registrars and deputy registrars administering the registry books for 28 cities and municipalities in the territories of the districts of Zlatibor, Macva, Kolubara and Moravica, as well as for the administrative officers working on issues related to citizenship, registration of permanent and temporary residence and issuance of ID cards within the organizational units of the Ministry of Interior and employees of social welfare centres. The training for more than 120 participants was organized by the Technical Group, formed based on the Memorandum of Understanding concluded between the Ministry of Justice and Public Administration, Ombudsperson and UNHCR, in accordance with the Activity Plan the aim of which is eradication of the phenomenon of legally invisible persons in Serbia by 2015.

Representatives of the Ministry of Justice and Public Administration, Ombudsperson, UNHCR, Praxis, Ministry of Interior and the Ministry of Labour, Employment and Social Policy drew attention of the present participants to the importance of possession of documentation and consequences of life without documentation. They also presented the most frequent problems in practice which are of significance for realization of goals specified in the aforementioned Memorandum of Understanding. The stated issues were analysed with reference to the changes in the domestic legislation which occurred as a part of the process of European integrations. New solutions contained in the Law on Permanent and Temporary Residence of Citizens (primarily the envisaged possibility to register permanent residence at the address of a social welfare centre for persons who do not have other option to regulate this issue), the Law on ID Card, the Law on Non-Contentious Procedure (new procedure for determination of time and place of birth which is a basis for registration in birth registry book) reflect the general tendency to facilitate the access to basic status rights. With reference to that, the representatives of the aforementioned state bodies and institutions presented to the participants of the training available mechanisms and means they should rely on in their work, in order to conduct the procedures in as simple and efficient manner as possible – procedures of subsequent birth registration, re-registration in cases of lost or destroyed registry books from Kosovo during the conflict, determination and registration of the fact of citizenship in citizenship registry books and the procedures before the social welfare centres. Representatives of the Ministry of Labour, Employment and Social Policy emphasized that they were currently working on amending the Instruction on proceeding in the procedure of registration of permanent residence at the address of a social welfare centre, issued in December 2012. Specifically, the Instruction contains the disputable provision on a piece of evidence that should be issued by the competent units of the MoI, needed for filling in the prescribed form and conducting the procedure at the address of a SWC. According to the suggested solution in the process of amending the Instruction, a certificate of a competent unit of MoI confirming that a person does not have permanent residence registered in the territory of the Republic of Serbia will be considered relevant evidence in the concerned procedure, which should remove present ambiguities. Thus, conditions would be created for unimpeded registration of permanent residence at the address of a SWC, which is the only way for many members of vulnerable groups to solve their problems with residence registration.

In the final part of the training, the participants discussed the insufficiently clear aspects in the concerned legal fields. Good will was expressed to contribute to eradication of the phenomenon of legally invisible persons in Serbia, while the achievement of the proclaimed goals will depend on efforts of all competent bodies and services, both at the normative level and the level of application of adopted solutions in practice.

In the procedure initiated upon Praxis complaint, the Commissioner for Protection of Equality established that the Primary School “Djura Jaksic” from Kikinda discriminated against pupils of Roma nationality by removing the Romany language with elements of national culture from the school curriculum for the 2012/2013 school year.

Specifically, since 2005/2006 school year, the subject Romany language with elements of national culture has been taught as an optional subject in this school which is located near the Roma settlement Mali Bedem in Kikinda. At the end of 2011/2012 school year, the school teacher of Romany language with elements of national culture conducted a preliminary poll according to which nineteen parents stated that they wanted their children to attend Romany language with elements of national culture lessons. Even though this information was forwarded to the Primary School “Djura Jaksic” from Kikinda, the school has not conducted the poll about the needs of Roma children or given the children the possibility to attend these lessons, but offered them other optional subjects to choose from.

The Instruction on forming classes and the manner of financing in primary and secondary schools envisages that the required number of pupils interested in learning an optional subject cannot be less than 15 per group, and that groups are formed per classes. If groups contain less than 15 pupils, schools have the possibility to seek consent of the Minister of Education to organize the teaching.

In its opinion, the Commissioner for Protection of Equality established that, according to evidence that nineteen Roma children were interested in learning Romany language with elements of national culture, the school had omitted to conduct a poll, especially bearing in mind that this subject had been taught as an optional subject in this school in previous years.  Furthermore, the Commissioner stated that the education of Roma children was a particularly important question which should be given the greatest attention, and that the school should have been particularly careful when deciding to remove this subject from the school curriculum.

The Commissioner for Protection of Equality stated in its opinion that the Primary School “Djura Jaksic” had failed to undertake all necessary measures in order to enable pupils to learn Romany language with elements of national culture as an optional subject in the 2012/2013 school year, and thus indirectly discriminated against the pupils, which is prohibited by the Article 7, and in relation to the Articles 19 and 24 of the Law on the Prohibition of Discrimination.

Finally, the Commissioner has issued a recommendation to the school to conduct a poll among the pupils in order to establish whether there are enough children interested in learning the Romany language with elements of national culture and to organize teaching of this optional subject should the results of the poll indicate that there is the needed number of interested children. The Commissioner also recommended to the school to undertake all necessary measures within its competence and powers in order to enable children of all national minorities to exercise the right to education in their mother tongue.

In Serbia, Romany language with elements of national culture is taught in several schools in Vojvodina and exclusively as an optional subject.

See: Opinion and Recommendation of the Commissioner (Serbian only)

Coalition against Discrimination has established the “Annual Award for Fight against Discrimination” as the recognition granted to individuals, organizations, institutions, companies and media, which have invested the greatest effort to combat discrimination against minority and marginalized groups or have contributed to the improvement of equality of all citizens in Serbia over the past year. Coalition against Discrimination decides on the winners based on proposals delivered by individuals and organizations by the end of 2012. The members of the Coalition against Discrimination are: Center for Advanced Legal Studies, Civil Rights Defenders, Labris – Organization for Lesbian Human Rights, CHRIS network, Association of Students with Disabilities, Gayten LGBT, PRAXIS and Regional Centre for Minorities.

"Awards for fight against discrimination” are granted for utmost contribution to the fight against discrimination in Serbia every year since 2008, in five categories:

• Public authority (institutions of public authority, MPs, officials)
• Civil society organizations (NGOs, unions, professional associations)
• Media (public media, journalists, professional associations)
• Business sector (enterprises, business people)
• Public figures (artists, sportspeople, actors/actresses, singers, politicians)

This year, the awards were handed over to the winners by the European Parliament Rapporteur for Serbia Jelko Kacin. “The awards for fight against discrimination” for utmost contribution in the fight against discrimination in 2012 were granted to:

1.    Public authority – Primary School "Dragojlo Dudic"
2.    Civil society organizations – Youth Initiative for Human Rights
3.    Media  - Boban Karovic, Daily Danas.
4.    Business sector -  Ipsos Strategic Marketing
5.    Public figures - Vincent Degert, His Excellency Ambassador, Head of Delegation of the European Union to the Republic of Serbia

On 27 June 2013, Praxis was visited by a group of 10 Burma lawyers and activists within their two-week study visit to Serbia supported by Civil Rights Defenders. On that occasion, the visitors discussed with Praxis representatives about Praxis goals and mission, experience in relation to provision of free legal assistance, strategic litigation and advocating for changes or adoption of systemic solutions that would enable respect for human rights of the marginalized population groups.

The problems related to registration in birth registry books and exercise of the right to citizenship, and various strategies implemented by civil society organizations aimed at their solution were also the subject of discussion. In addition, the visitors expressed special interest in Praxis field work and organization of mobile legal teams. The use of methods of strategic litigation was presented through cases which Praxis conducted in the area of protection against discrimination and exercise of the right to adequate housing.

The participants assessed the visit as useful and presented experience as the basis for development of new legal strategies in their organizations.

On 27 June 2013, the Government of the Republic of Serbia adopted the Strategy for Prevention and Protection against Discrimination for the period from 2013 to 2018. The Strategy was presented as the complied system of measures and instruments of public policies Serbia needs to conduct with aim to reduce all forms and kinds of discrimination, particularly against the marginalized and social groups. Praxis participated in the elaboration of the Draft Strategy and transferred the experience and noticed problems in relation to discrimination against members of national minorities, women, children, refugees, internally displaced persons and other vulnerable migrant groups.

The clear strategy for prevention of discrimination is an important step towards strengthening and improvement of mechanism of control, promotion of tolerance and support to implementation of anti-discrimination regulations. At the same time, it is necessary to urgently adopt the action plan in order to define concrete and individual measures and deadlines for implementation of the strategy.

SeeStrategy for Prevention and Protection against Discrimination

Praxis signed the Memorandum of Understanding with the private research Northeastern University from Boston with an aim to establish the cooperation within Praxis Internship Programme.  

The cooperation between Praxis and Northeastern University dates back to 24 July 2012, when the students visited Praxis within their study visit to Belgrade. On that occasion, Praxis lawyers acquainted the students with the main objectives and activities of the organization and the students were most attracted by forced evictions of informal settlements and position of legally invisible persons.

Signing of the Memorandum of Understanding will give students an opportunity to get acquainted with the work of a non-governmental organization in the area of protection and improvement of rights of minority and marginalized population groups in Serbia and also to learn about its management process, advocacy and functioning.

For more information about Praxis Internship Programme, see here.