Praxis Watch

Friday, 1 February 2013

Obligatory Representation by an Attorney-at-Law in Administrative Disputes – Another Reason for Which it is Necessary to Amend Article 85 of the Civil Procedure Law

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.

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