Praxis Watch

Friday, 14 June 2013

Unconstitutional Provisions of the Article 85, Paragraph 1 in the part stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494-505 of the Civil Procedure Law

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

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