Praxis Watch

Tuesday, 24 June 2014

Right to a Fair Trial Denied

On 23 May 2014, the National Assembly adopted a set of judicial laws, which were introduced into the Parliament through an emergency procedure, without public discussion and consultations with expert public, which, to some extent, led to legal uncertainty and inequality of citizens before the law.

Soon after, the first initiative for the assessment of constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure was submitted to the Constitutional Court by Praxis for the denial of the right to a fair trial to some population groups by prescribing illegitimate and disproportionate limitations and for threatening the constitutional principle of equality of legal protection before the courts and other state bodies. Specifically, the Article 4 of the Law on Amendments to the Law on Civil Procedure, which came into force on 31 May 2014, amended the Article 85 with the new paragraph 2 based on which “the representative of an individual must be an attorney-at-law, a close relative, brother, sister or a spouse, or the representative of the legal aid service in the local self-governance who is a graduate lawyer with the bar exam”.

This imposes limitations to a number of population groups, such as legally invisible persons, then persons without alive close relatives from the Article 85, Paragraph 2 of the Law on Civil Procedure, who are not married and of poor financial standing, and persons living in common-law communities and have no alive close relative from the Article 85, Paragraph 2 of the Law on Civil Procedure and are of poor financial standing.

To remind, the Article 85 of the Law of Civil Procedure has already been the subject of the assessment of constitutionality when it was established that its provisions in the paragraph 1 reading “must be a lawyer” and in the paragraph 2 reading that “ a party must be represented by an attorney-at-law in the procedure upon extraordinary remedies unless he/she is a lawyer himself/herself”  were unconstitutional. The opinion of the Constitutional Court was that “there is no constitutional ground for stipulating the limitations in regard to who may be the proxy of the party in the civil procedure”. However, the legislator did not take into account the explanation of the decision of the Constitutional Court but it again stipulated the limitations related to who may be the proxy of the individual in the civil procedure, and thus the disputable provision will again be the subject of the assessment of constitutionality.                         

For more information, see the announcement: Praxis Submitted the Initiative for Assessment of Constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure

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