CCPR/C/131/D/2869/2016

GE.22-08608(E)

Human Rights Committee

Decision adopted by the Committee under the Optional

Protocol, concerning communication No. 2869/2016*, **

Communication submitted by:

D.M. (represented by counsel, Marija Ivanović)

Alleged victim:

The author

State party:

Serbia

Date of communication:

20 December 2012 (initial submission)

Document reference:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 30 November 2016 (not issued

in document form)

Date of adoption of decision:

25 March 2021

Subject matter:

Legal representation requirement for submission

of constitutional complaints

Procedural issues:

Exhaustion of domestic remedies; manifestly ill-

founded; jurisdiction ratione materiae

Substantive issues:

Access to court; discrimination; fair trial

Articles of the Covenant:

14 (1), read alone and in conjunction with 26

Articles of the Optional Protocol:

2, 3 and 5 (2) (b)

1.

The author of the communication is D.M., a national of Serbia born on 24 March 1943.

He claims that the State party has violated his rights under article 14 (1), read alone and in

conjunction with article 26 of the Covenant. The Optional Protocol entered into force for the

State party on 6 December 2001. The author is represented by counsel.

Facts as submitted by the author

2.1

In 2001, the author was dismissed from his employment at Belgrade City Library.

Later that year, the author filed a civil complaint against the Library before Belgrade First

Municipal Court, requesting annulment of the decision to terminate his employment. In 2003,

the Court ruled in favour of the author. However, Belgrade District Court subsequently

granted the Library’s appeal of that decision and ordered a retrial.

* Adopted by the Committee at its 131st session (1–26 March 2021).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan,

Mahjoub El Haiba, Furuya Shuichi, Carlos Gómez Martínez, Marcia V.J. Kran, Duncan Laki

Muhumuza, Photini Pazartzis, Hernán Quezada Cabrera, Vasilka Sancin, José Manuel Santos Pais,

Soh Changrok, Kobauyah Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu and Gentian

Zyberi.

United Nations

CCPR/C/131/D/2869/2016

International Covenant on

Civil and Political Rights

Distr.: General

7 June 2022

Original: English

CCPR/C/131/D/2869/2016

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2.2

In May 2009, Belgrade First Municipal Court issued a decision in which it found in

favour of the Library. The Court ordered the author to pay court costs in the amount of

173,500 dinars (equivalent to approximately 2,000 euros at the time). On 31 July 2009,

Belgrade District Court dismissed the author’s appeal of the lower court decision, which then

became enforceable.

2.3

On 9 September 2010, the decision of Belgrade District Court dated 31 July 2009 was

delivered to the author’s attorney.1 Under the 2004 Civil Procedure Code, a cassation appeal

may be filed in labour law disputes. The 30-day statutory period for initiating a cassation

appeal begins to run on the date of delivery of a copy of the final judgment.2 The author

maintains that the last day to file a cassation appeal of the decision of the District Court was

9 October 2010.

2.4

The author had an argument with his then attorney, who was reluctant to file a

cassation appeal on the author’s behalf. The author believes that the attorney’s reluctance

was due to the author’s inability to pay for the appeal, given that the costs that the court had

ordered the author to pay were more than four times his monthly salary. In the end, the

attorney decided not to file an appeal on the author’s behalf, and returned the author’s case

materials to him on 6 October 2010, three days before the deadline to file a cassation appeal.

The author prepared his cassation appeal on his own and sent it on 8 October 2010.3

2.5

On 11 February 2011, the Supreme Court of Cassation declared that the author’s

appeal of the decision of Belgrade District Court dated 31 July 2009 was inadmissible

because it had been submitted and signed by the author himself, not by his legal

representative.4

2.6

The author then filed a complaint with the Constitutional Court in which he alleged

that the Supreme Court of Cassation had violated his right to a fair trial by misapplying the

relevant provisions of the Civil Procedure Code. In the alternative, he argued that the

obligation to be represented by a lawyer before the Supreme Court of Cassation, in the

absence of a legal aid system and without a realistic opportunity to obtain legal representation

in a timely fashion, violated his right to access a court. The author also raised a claim of

indirect discrimination, arguing that the rule requiring legal representation before the

Supreme Court of Cassation discriminated against those who could not afford to pay for legal

services.

2.7

On 4 July 2012, the Small Council of the Constitutional Court dismissed the author’s

complaint on the ground that the author’s claims were not “constitutional provided reasons.”

The author maintains that he has exhausted domestic remedies, as there are no further

avenues of appeal. He also states that he has not submitted the same matter for examination

by another international body of investigation or settlement.

2.8

Regarding the applicable domestic law, the author states that under the 2004 Civil

Procedure Code, which was in force at the relevant time, “a party with legal competence may

themselves undertake acts in the proceedings (litigation competence)”; however, a “party

must have a legal counsel in the review proceedings or the proceedings initiated for the

protection of legality”.5 The author maintains that the term revizija in Serbian may be

translated both as “review proceedings” and “cassation proceedings”. In addition, the Code

states that “when a party is exempted from the liability of paying the costs of litigation, the

first instance court shall recognize the right to free legal aid, if it is necessary to protect the

rights of a party”. 6 The State party’s Constitution prohibits all direct or indirect

discrimination and guarantees the implementation of human and minority rights and the right

to a public hearing before an independent and impartial tribunal.

1 It appears that the decision was delivered to the author in 2009.

2 The author cites art. 394 (1) of the Civil Procedure Code.

3 The author’s cassation appeal is dated 8 October 2008. According to the author’s constitutional

complaint, he filed his cassation appeal on 8 October 2009.

4 The decision of the Supreme Court of Cassation is dated 11 February 2010.

5 The author cites arts. 74 (1) and 84 (2) of the Civil Procedure Code, respectively.

6 The author cites art. 166 (1)–(3) of the Civil Procedure Code (internal citations omitted).

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Complaint

3.1

The author claims that by failing to allow him to appeal the decision of Belgrade

District Court to the Supreme Court of Cassation without legal representation, in

circumstances where it was not feasible for him to obtain such representation in a timely

fashion or apply for and obtain legal aid, the State party violated his rights under article 14

(1), read alone and in conjunction with article 26 of the Covenant. The author was denied

access to justice and subjected to indirect discrimination because the inflexible law requiring

applicants to the Supreme Court of Cassation to be represented by counsel discriminates

against those who cannot afford to pay for legal services.

3.2

The decision of the Small Council of the Constitutional Court was procedurally

flawed. The Court stated that the author’s claims were not “constitutionally provided

reasons”. The author maintains that this reasoning is strange and unclear. If the author’s

claims were substantively incorrect, an 8-judge panel or the 15-judge Grand Chamber of the

Constitutional Court should have decided on his complaint, not the 3-judge Small Council.

The Constitutional Court incorrectly dismissed the author’s complaint on procedural grounds

when in fact its reasoning related to the substance of the complaint.

3.3

The decision of the Constitutional Court was also substantively flawed. It is important

to address access to courts in the context of civil proceedings, because at the time the

complaint was submitted, the State party did not have a legal aid system for civil proceedings.

In Airey v. Ireland, the European Court of Human Rights found that an applicant lacked

access to a court in circumstances where she could not afford to pay a lawyer to obtain a

marital separation decree and was unable to represent herself.7 The European Court did not

dictate the measures that States should take to ensure access to a court, but indicated that

possible measures may include free legal aid schemes or the simplification of court

procedures. In the author’s case, the denial of access to a court was even more unjust than in

Airey v. Ireland, for the author was prepared to represent himself before the Supreme Court

of Cassation but was not permitted to do so under the law. The European Court has also

repeatedly found that the failure to provide for legal aid for appeals on points of law

constitutes a violation of the right to a fair trial.8 The author invoked the aforementioned

jurisprudence of the European Court in his appeal before the Constitutional Court. However,

the Constitutional Court ignored his arguments.

3.4

The conclusions of the Constitutional Court are misleading and erroneous. The Court

misinterpreted the author’s stated reasons for not wishing to hire a new attorney before

submitting his appeal to the Supreme Court of Cassation. The Constitutional Court reasoned

that the author’s claim that he did not have the resources to afford to hire a new attorney was

irrelevant, since he had not requested legal aid through the procedures set forth in articles

164 to 169 of the Civil Procedure Code. However, in his constitutional complaint, the author

wrote:

We recall that the applicant is a retiree and the amount owed (2,000 euros) is greater

than his four-month income. In such a situation, for it was not possible to allocate new

funds for hiring a lawyer in the cassation proceedings. But financial moment is not

the only important moment here. After his former attorney finally declined to prepare

and launch the cassation request (three days before the deadline), the petitioner did

not want a new attorney to whom he (the petitioner) needed to explain the whole

process and the facts of the case in three days and, at the end, expect that new lawyer

to write a good cassation request. Instead of that, the petitioner himself, in his own

name and for [his] own account sent the cassation request. This cassation request was

on time and based on the legally provided substantive reasons. There is no reason why

that request would not be decided on the merits.

3.5

Legal remedies must be available, effective and adequate. The procedure for free legal

aid under article 166 of the Civil Procedure Code fulfils none of these criteria and is therefore

7 European Court of Human Rights, Airey v. Ireland, Application No. 6289/73, Judgment of 9 October

1979.

8 The author cites, inter alia, European Court of Human Rights, Twalib v. Greece, Application No.

42/1997/826/1032, Judgment of 9 June 1998.

CCPR/C/131/D/2869/2016

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not a remedy that the author was required to exhaust. The author is unaware of any

circumstances in which an applicant has been granted free legal aid under article 166 of the

Civil Procedure Code to file a cassation appeal. Moreover, that provision does not apply to

proceedings involving extraordinary legal remedies. Even if it did, as a practical matter, the

author still could not have obtained free legal aid because the competent court would not

have been able to decide on his request in such a short period. The Civil Procedure Code does

not specify the time frame within which the first instance court must decide on a request for

free legal aid. In its judgment on Sialkowska v. Poland, the European Court of Human Rights

found that it would have been impossible for an applicant to find a new lawyer under a legal

aid scheme because when he met his lawyer, the time limit for lodging a cassation appeal

was to expire three days later.9

3.6

As remedies, the author requests that the Committee find that the State party violated

his right of access to a court and subjected him to indirect discrimination in relation to the

right to a fair trial. He also requests that the Supreme Court of Cassation annul its judgment

against him, re-examine his appeal and issue a decision on its substance. He further requests

compensation for the violations suffered and reimbursement of legal expenses he incurred

during the proceedings before the Committee.

State party’s observations on admissibility and the merits

4.1

In its observations dated 18 May 2017, the State party confirms that under article 84

(2) of the Civil Procedure Code, a party shall be represented by a legal counsel in review

proceedings and in writ of certiorari proceedings. Under article 401 of the same Code, review

shall not be permitted, inter alia, if a motion is filed by a person who is not a lawyer.

4.2

The nature of courts of cassation and their role in the assessment of the application of

the law is special, as the European Court of Human Rights has repeatedly noted. Thus, it is

reasonable for proceedings before the Court of Cassation to be more formal than ordinary

judicial proceedings. The requirement that claimants before the Court of Cassation be

represented by a qualified legal counsel does not violate article 6 of the Convention for the

Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights). The same requirement has been implemented by several Member States of the

Council of Europe. In addition, under the Advocacy Act, which was in force at the relevant

time, lawyers must provide competent and conscientious legal assistance to their clients and

are permitted to recuse themselves, except when such recusal would cause irreparable harm

to their client. Thus, the author could have filed a lawsuit requesting damages from his then

attorney if he believed that the attorney’s actions had harmed him.

4.3

Under article 170 of the Constitution, a constitutional complaint is a special and

exceptional legal remedy. It may concern general acts or actions performed by State bodies

or by organizations exercising delegated public powers, where such acts or actions violate or

deny human or minority rights and freedoms that are guaranteed by the Constitution.

Individuals filing constitutional complaints must have previously sought legal protection

before the ordinary courts.

4.4

In the present case, the Constitutional Court rejected the author’s complaint on the

basis of the jurisprudence of the European Court of Human Rights, according to which a

violation of rights must be analysed in a comprehensive and convincing manner. The

Constitutional Court denied the author’s appeal because the Supreme Court of Cassation had

applied in an acceptable manner the legal requirements of article 84 (2) of the Civil Procedure

Code, according to which a party must be represented by legal counsel in review proceedings,

and article 401 (2) of the same Code, according to which review is not permitted if a motion

is filed by a person who is not a lawyer.

4.5

Regarding the author’s claim that he was denied access to courts, the Constitutional

Court considered that under the jurisprudence of the European Court of Human Rights, the

right of access to courts is linked to lower and first instance proceedings, whereas access to

the highest instance may be narrowed in various ways, within certain limitations. The

9 European Court of Human Rights, Sialkowska v. Poland, Application No. 8932/05, Judgment of 22

March 2007.

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Constitutional Court had also established in its own jurisprudence that articles 84 (2) and 401

(2) of the Civil Procedure Code are indeed constitutional in that they do not limit the

protection of citizens’ rights.10 On the contrary, the legal representation requirement protects

appellants’ rights, given the complexity and importance of constitutional procedures and

disputes and the efficiency of court proceedings. The Constitutional Court considered in its

previous jurisprudence that appellants require protection in the form of professional legal

knowledge and experience in order to enable their constitutional rights and obligations to be

determined in an effective and timely manner.

4.6

The Constitutional Court also considered that the author’s claim that he could not have

afforded legal representation was irrelevant because, under articles 164 to 168 of the Civil

Procedure Code, those who cannot afford to pay for the costs of legal proceedings are exempt

from an obligation to reimburse those costs. Articles 165 and 166 of the Civil Procedure Code

also set forth the procedure for claiming such reimbursement.

4.7

As indicated in the decision of the Constitutional Court, the author should have

exhausted domestic remedies with respect to his claim for protection before submitting his

constitutional complaint. However, during the civil proceedings, the author did not even

attempt to raise a claim of inability to pay court costs so as to enable the courts to grant the

author free legal representation if it were necessary for the protection of his rights, as required

by the Civil Procedure Code.

4.8

The Constitutional Court has been consistent in its position on this issue. In its

decision IU-28/2005 of 30 April 2009, the Court determined that the mandatory legal

representation requirement for appellants did not constitute discrimination on the basis of

property. This was because the relevant provisions of the Civil Procedure Code set forth

exemptions for individuals who cannot afford to reimburse the costs of proceedings, and

establish a right to legal aid for those who have been fully exempted from such

reimbursement and who require legal aid for the protection of their rights. Although the right

of exemption must be exercised in first instance proceedings, its effect extends to the

proceedings involving extraordinary legal remedies.

Author’s comments on the State party’s observations on admissibility and the merits

5.1

In his comments dated 2 August 2017, the author reiterates his arguments and further

states that he never claimed, as the State party contends, that the requirement for legal

representation violates article 6 of the European Convention on Human Rights. Rather, the

problem lies in the fact that in addition to the requirement for legal representation, there is

no real and feasible opportunity to obtain legal representation, if needed, in the absence of a

legal aid scheme. The State party’s argument regarding the Advocacy Act is irrelevant

because the author’s attorney did not recuse himself from the case while proceedings were

pending. The State party’s argument that the author could have sought compensation from

his attorney is preposterous and irrelevant.

5.2

The author disagrees with all of the points raised in the decision of the Constitutional

Court and provides a translation of articles 164 to 167 of the Code of Civil Procedure.

Submission of a motion to the court of first instance to request reimbursement for court fees

was not a realistic and effective remedy that the author was required to exhaust. Cassation

appeals must be filed within 30 days of receipt of a final court decision. It is not possible to

request an extension of time to file a cassation appeal. After the author had obtained a final

court decision requiring him to pay court costs in the amount of 173,500 dinars, it was legally

impossible for him to be exempted from the obligation to reimburse court costs. This is

because after the issuance of that decision, a court of first instance would not have been

permitted to change any part of the decision. Without an exemption from reimbursement of

court costs, the author could not obtain free legal representation.

5.3

Even if that procedural obstacle were overcome, the author would have faced other

difficulties in obtaining reimbursement for court costs. To apply for exemption, individuals

must submit a property certificate issued by a competent authority; obtaining such a

certificate would take at least several days. In addition, even if the request for exemption is

10 The State party cites Constitutional Court decision No. IU-28/2005 of 30 April 2009.

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granted in full, individuals must still demonstrate that legal representation is necessary for

the protection of their rights in order to obtain free legal aid. The reimbursement process

could also be prolonged because it involves more than one deciding authority; while the court

of first instance decides on the request for legal aid, the President of the court of first instance

decides who to appoint as counsel. The State party could have produced statistics concerning

the average processing time for requests for reimbursement of court costs and for free legal

aid, but did not do so.

5.4

In sum, it is highly unrealistic to expect a cassation appellant, within 30 days, to gather

all of the necessary documents, submit a court cost exemption request, obtain a decision on

that request, obtain a separate decision appointing a legal aid counsel, familiarize the counsel

with the facts of the case and have the counsel file the appeal. For this reason, the procedure

for obtaining a court costs exemption and free legal aid was not an effective remedy that the

author was required to exhaust.

5.5

Citing the jurisprudence of the European Court of Human Rights on Maširević v.

Serbia,11 the author reiterates that by dismissing his cassation appeal, the Supreme Court of

Cassation interfered with his right to access a court and denied him justice.

5.6

One of the main goals of the national Judicial Reform Strategy for the period 2013–

2018 and its related action plan is improving access to justice. The Strategy and action plan

underline the importance of adopting and implementing the draft law on free legal aid.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

6.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not currently being examined under another procedure of

international investigation or settlement.

6.3

The Committee notes the State party’s position that the author did not, as required by

article 5 (2) (b) of the Optional Protocol, exhaust all available domestic remedies. The

Committee notes the State party’s argument that the author did not avail himself of the

procedure, set forth under the Civil Procedure Code, for requesting reimbursement of court

costs and free legal aid. The Committee considers that in the present case, the issue of the

availability and effectiveness of those remedies is closely linked to the substance of the

author’s arguments regarding access to justice. The Committee further notes that in his appeal

of the decision of the Supreme Court of Cassation before the Constitutional Court, the author

raised the substance of his allegations under article 14 (1), read alone and in conjunction with

article 26 of the Covenant. Accordingly, the Committee considers that it is not precluded by

article 5 (2) (b) of the Optional Protocol from examining the merits of the present

communication.

6.4

The Committee notes the author’s claim that he was denied access to the Supreme

Court of Cassation in violation of his rights under article 14 (1), read alone and in conjunction

with article 26 of the Covenant. The Committee takes note of the author’s position that the

domestic law requiring cassation appellants to be represented by a lawyer prevented him from

accessing the Court, since his then lawyer declined to file the appeal and only returned his

file to him a few days before the filing deadline, thus leaving him insufficient time to find a

new lawyer. The Committee notes the author’s assertion that when he submitted the appeal

in his own name, the Supreme Court of Cassation rejected it because it had not been submitted

by a lawyer. The Committee notes the author’s argument that this constituted discrimination

based on the author’s economic status. The Committee also notes the author’s assertion that

the brief 30-day filing period would not have allowed him to obtain in a timely fashion

11 European Court of Human Rights, Maširević v. Serbia, Application No. 30671/08, Judgment of 11

February 2014.

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reimbursement of court costs and/or legal aid had he requested them through the procedures

provided for by law.

6.5

The Committee recalls its general comment No. 32 (2007), in which it is stated that

the right of equal access to a court, embodied in article 14 (1) of the Covenant, concerns

access to first instance procedures and does not address the issue of the right to appeal or

other remedies.12 The Committee also notes that the present communication concerns a civil

labour matter, and observes that article 14 (3) (d) of the Covenant, which provides for a

limited right to defend oneself, applies to criminal defendants and not to civil litigants. The

Committee further recalls that the right to review by a higher tribunal under article 14 (5) of

the Covenant does not apply to procedures determining rights and obligations in a suit at law,

or any other procedure not being part of a criminal appeal process. 13 Accordingly, the

Committee considers that the author’s claim regarding a denial of access to the Supreme

Court of Cassation lies outside the scope of the protection of article 14 of the Covenant and

is therefore inadmissible ratione materiae under article 3 of the Optional Protocol.

6.6

The Committee also takes note of the author’s claim that the decision of the

Constitutional Court was unclear and erroneous, presumably in violation of the right to a fair

hearing under article 14 (1) of the Covenant. The Committee recalls that it is generally for

the courts of States parties to the Covenant to evaluate both the facts and evidence, and the

application of domestic legislation in the case in question, unless it is shown that their

evaluation was clearly arbitrary or amounted to a manifest error or denial of justice, or that

the court otherwise violated its obligation of independence and impartiality.14 The Committee

considers that the information available to it does not demonstrate that the decision of the

Constitutional Court on the author’s complaint suffered from such deficiencies. Rather, the

Court dismissed the complaint because the contested decision of the Supreme Court of

Cassation was based on the facts that articles 84 (2) and 401 (2) of the Civil Procedure Code

require individuals to be represented by a lawyer in revision proceedings, and the author had

not attempted to seek legal aid through the procedures allowed for by law. The Committee

therefore considers that the author has not demonstrated, for the purpose of admissibility, that

the decision of the Constitutional Court was manifestly arbitrary or erroneous, or amounted

to a denial of justice. Accordingly, the Committee declares this aspect of the communication

under article 14 (1) of the Covenant inadmissible under article 2 of the Optional Protocol.

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under articles 2 and 3 of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State party and to the

author.

12 General comment No. 32 (2007), para. 12, citing I.P. v. Finland (CCPR/C/48/D/450/1991), para. 6.2.

13 General comment No. 32 (2007), para. 46.

14 General comment No. 32 (2007). See also Tyvanchuk et al. v. Belarus (CCPR/C/122/D/2201/2012),

para. 6.6.