Tim za socijalno uključivanje i smanjenje siromaštva

Author: prof. Nevena Petrušić, Faculty of Law, University of Niš

Right to access to justice in the context of poverty

Effective access to justice is a fundamental postulate of any democratic society founded on the rule of law, and a prerequisite for the enjoyment of all civil, political, cultural, economic, social and other rights. Although access to justice is important for all, it is especially relevant for members of vulnerable groups, who are at a higher risk of poverty and social exclusion. It is precisely because of their vulnerability that they are at a higher risk of having their rights violated and are more affected by violations of their rights, violence, discrimination and other unlawful acts. Their need for legal protection is, thus, often greater compared to other citizens. Lack of access to legal protection mechanisms in such situations exacerbates their vulnerability and leads to further exclusion and marginalisation. Experience shows that effective access to justice is essential for eradicating poverty and social exclusion and for human development. It is for this reason that ensuring equality in access to justice is set as one of the targets of the UN Sustainable Development Agenda 2015-2030, under Goal 16: Peace, justice and strong institutions.^[1]

Effective access to justice includes the possibility of seeking and obtaining legal protection from judicial and other authorities, but it is, in fact, much more than that. Access to justice cannot be considered effective if citizens do not know their rights, if they fear the judicial system, if it is unaffordable for them, if they have difficulties navigating it owing to its complexity, lack of language knowledge etc. In Serbia, contact with the judicial system is a great challenge for many citizens. This is especially the case with members of deprived and vulnerable groups. It is a result of many social and cultural barriers (poverty, social exclusion, poor literacy, low education attainment, not knowing the official language, stereotypes and prejudice, etc.), as well as barriers of an institutional nature present in the judicial system itself, including lack of trust in the judiciary. Thus, access to free legal aid services is often the only way to overcome those barriers. This is also the reason why equality in access to justice requires a functioning free legal aid system that acknowledges vulnerable groups’ specific needs and promotes their legal empowerment. It should ensure that economic barriers hinder no one from exercising or defending their rights before any court adjudicating matters of property, family, labour, housing, social law and other legal matters.

Judicial authorities’ modality of operation during the state of emergency

The coronavirus epidemic and the declaration of state of emergency caused tectonic changes in the functioning of all institutions, including the judiciary. On 17 March 2020, with a view to reducing the risk of contagion, the Ministry of Justice issued recommendations on the operation of courts and public prosecutors’ offices,^[2] notaries public^[3] and enforcement agents^[4] during the state of emergency, on the basis of which the competent authorities issued decisions on temporary case-handling work arrangements for staff in courts and prosecutors’ offices, attorneys-at-law and members of other legal professions.^[5] Work-from-home rules were set for judicial staff and numerous measures to reduce the risk of contagion were introduced. The operation of all judicial authorities was scaled down and confined to handling specific criminal and civil cases in which, according to assessment, urgency was warranted and postponement was unjustifiable. With regard to civil proceedings, the time limits for bringing proceedings, invoking legal remedies and undertaking other procedural actions were suspended and hearings were to be postponed in all cases except a limited range of civil law matters: taking decisions imposing, extending or lifting interim injunctions and domestic violence protection orders, taking decisions on the forced hospitalization of persons with mental health problems, and enforcement of decisions in family law matters.^[6] The criteria for determining the range of civil law matters that could be handled during the state of emergency are not known, since neither the Ministry of Justice recommendations nor the High Judicial Council conclusion provided the rationale for this.

Compared to other countries that, owing to the epidemic, restricted the right to access to justice by specifying the civil law matters that could be handled,^[7] the Republic of Serbia imposed more stringent restrictions, as the range of civil law matters that could be handled during the state of emergency was narrower.

The functioning of the judicial system during the state of emergency was characterised by many difficulties. Under the conditions of restricted freedom of movement, different issues arose: who would issue movement permits to attorneys for the purpose of representing their clients, the need for alternative ways of reporting domestic violence to enable victims to seek help without risk to their safety and without fear of penalties for breaking curfew, a range of issues concerning children’s personal contacts with the parent with whom they did not live. Many dilemmas arose concerning the legality and legitimacy of certain measures; one of the most notable issues were Skype trials for violation of self-isolation orders, in respect of which different opinions and views were expressed by professional circles.

The public was insufficiently informed about the judicial system’s modality of operation during the state of emergency, as judicial authorities made no official announcements in the media regarding how and when citizens could contact them. Such information was only posted on judicial authorities’ websites, which were inaccessible to many citizens.

Challenges in free legal aid provision during the state of emergency

Even before the state of emergency was declared, free legal aid provision was hampered by the fact that the free legal aid system was not fully operational yet. During the state of emergency, the Republic of Serbia did not take any institutional measures to adapt the granting and provision of free legal aid to the emergency circumstances. The possibility of filing applications for free legal aid and supporting documentation online was not foreseen; as a result, many citizens were precluded from seeking free legal aid owing to the lockdown in effect during the opening hours of the administrative authorities in charge of handling applications. The same factors hindered them from collecting the supporting documentation on their economic status, thus further limiting the opportunities for exercising the right to free legal aid.

On the other hand, local free legal aid services did not inform the general public about the times and modalities of contact with citizens for free legal aid purposes, and the telephone numbers posted on their websites were often unavailable. There are no official data showing how many citizens succeeded in overcoming these barriers and filing applications for free legal aid, or how many of those applications were granted. Such data should certainly be collected, analysed and published. An example of good practice in free legal aid provision during the state of emergency is found in the work of civil society organisations registered as free legal aid and support providers; these organisations adjusted their modality of operation to emergency circumstances and provided citizens with legal information and legal advice via telephone and electronic communication tools.

Judicial emergency operation plan

Emergencies due to events that threaten the survival of the population or jeopardise its safety, life and health require adjustments in the operations of all authorities and services with a view to efficient risk management, adequate emergency response and enhancing community resilience. To achieve these goals, effective emergency operation plans must be in place in all public authorities. As regards the judiciary, there is no such comprehensive judicial emergency operation plan prepared in advance. Consequently, the measures to adjust the operation of the judiciary to emergency circumstances were taken ad hoc, with no prior in-depth analysis and with no involvement of all relevant stakeholders in assessment.

A key lesson learned during the state of emergency is the need for a comprehensive judicial emergency operation plan, since efficient functioning of the judiciary in such situations, regardless of their cause, is essential for good emergency management and enhancing community resilience.

The judicial emergency operation plan should specify what measures should be adopted, within what time limits, and who is competent to adopt them, in order that the judicial authorities’ modality of operation would respond to the emergency circumstances and meet the needs for legal protection. The invaluable experiences gained during the state of emergency provide the starting point for the development of such a plan. To benefit from these experiences, it is necessary to collect and critically analyse all quantitative and qualitative data on judicial authorities’ operation and results during the state of emergency, note the difficulties and identify the unmet needs from the viewpoints of clients and judicial staff.

Challenges in access to justice in the post-corona period

The state of emergency is behind us, and ahead of us is a period of social and economic recovery, with a prominent role to be played by the judiciary, itself also affected by the consequences of the emergency. An urgent task in the post-corona period will be to remove the barriers to access to justice that are faced by members of deprived and vulnerable groups, which requires the proactive involvement of all stakeholders in the free legal aid system.

In designing short- and long-term solutions to improve access to justice, it is necessary to take into account the anticipated rise in the number of citizens in need of legal protection who cannot afford to pay advance costs of the proceedings and legal aid services, considering that the economic status of many citizens, especially those from vulnerable groups, has deteriorated as a result of the emergency. In such circumstances, to attain equality in access to justice, it is essential to relax the eligibility requirements for exemption from advance payment of the costs of proceedings and access to free legal aid.

As regards exemption from advance payment of the costs of proceedings, the current situation is unsatisfactory. The regulations governing this exemption are applied erratically and inconsistently, leading to inconsistent access to courts for the poor segment of the population.^[8] Public awareness of the eligibility requirements for exemption from advance payment of court fees and other costs of proceedings is very low; in addition, there are no guidelines or standardised forms to be used by judges when taking decisions on applications for exemption. There are indications that some court presidents unofficially encourage their judges to deny applications for exemption from advance payment of court fees, as these constitute a source of income for courts.^[9][10]

Attaining equality in access to justice in the post-corona period requires granting exemptions from advance payment of costs of proceedings to all who cannot afford to pay them at the time of bringing the proceedings.

The existing criteria concerning the client’s economic status are highly restrictive; thus, many materially deprived citizens do not meet the free legal aid eligibility criteria, which leaves them without options to bring proceedings and obtain judicial protection. This especially severely affects those who need judicial protection in order to exercise their subsistence rights, such as the right to work, right to housing, right to maintenance etc. Relaxing the free legal aid eligibility criteria would allow more citizens to have their rights protected and exercise them before courts, thus preventing a rise in the number of poor and socially excluded people.

With a view to effective access to free legal aid in the post-corona period, it is necessary to relax the free legal aid eligibility criteria.

Attaining equality in access to justice requires further work to put the free legal aid and legal support system into operation. The current situation is not satisfactory. Registered free legal aid providers currently include 3,304 attorneys-at-law; 32 municipalities have not registered their free legal aid services; registered legal support providers include only 24 organisations, of which 10 in Belgrade, three each in Niš, Leskovac and Pirot, and one each in Kruševac, Valjevo, Subotica, Novi Sad and Čačak.^[11] Owing to this situation, Serbian citizens are not equal in opportunities to obtain high-quality free legal aid and support. Therefore, measures need to be taken to ensure that sufficient numbers of legal aid and support providers are available in all local government units.

Achieving equality in access to justice requires taking measures to ensure balanced presence of legal aid and support providers across Serbia.

On the other hand, to benefit equally from the Law on Free Legal Aid, citizens must be aware of it. Although the Law became applicable on 1 October 2019, no wider awareness-raising campaigns were conducted to familiarise citizens with the requirements and procedures for access to free legal aid, which is certainly needed, especially when it comes to members of vulnerable groups.

Measures to improve the efficiency of the judiciary in the post-corona period

To provide the prerequisites for effective access to justice and provision of efficient legal protection, it is also necessary to take a range of other short- and long-term measures, most notably:

1. increase courts’ capacities to handle cases efficiently, given the backlog and the anticipated increased inflow of new cases;
2. establish mechanisms for collective protection of rights in cases of mass violations, to prevent litigation cases on a massive scale as their numbers would paralyse courts and have a negative impact on their efficiency;
3. establish an adequate legal and institutional framework for the wider application of mediation and other alternative methods of peaceful dispute resolution;
4. accelerate the digitalisation of the judiciary with a view to enhancing its efficiency and transparency.

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[1] 2030 Agenda for Sustainable Development. Available at: www.un.org/sustainabledevelopment/

[2] See: Preporuka Ministarstva pravde za rad sudova i javnih tužilaštava za vreme vanrednog stanja proglašenog 15.03.2020. (Ministry of Justice Recommendation for the operation of courts and public prosecutors’ offices during the state of emergency declared on 15 March 2020), No 112-01-557/2020-05 dated 17 March 2020. Available here.

[3] See: Prepruka Ministarstva pravde za rad javnih beležnika za vreme vanrednog stanja proglašenog 15.03.2020. (Ministry of Justice Recommendation for the operation of notaries public during the state of emergency declared on 15 March 2020), No : 740-07-329/2020-05 dated 17 March 2020. Available here.

[4] See: Preporuka Ministarstva pravde za rad javnih izvršitelja za vreme vanrednog stanja proglašenog 15.03.2020. (Ministry of Justice Recommendation for the operation of enforcement agents during the state of emergency declared on 15 March 2020), No 740-08-330/2020-05 dated 17 March 2020. Available here.

[5] Zaključak Visokog saveta sudstva od 18.3.2020. (High Judicial Council Conclusion dated 18 March 2020); Available here. Rešenje o ispravci Zaključka od 19.3.2020. (Decision on the Corrigendum of the Conclusion dated 19 March 2020), available here.

[6] Zaključak Visokog saveta sudstva od 18.3.2020. (High Judicial Council Conclusion dated 18 March 2020); Available here. Rešenje o ispravci Zaključka od 19.3.2020. (Decision on the Corrigendum of the Conclusion dated 19 March 2020), available here.

[7] Different countries took different approaches to adapting the operation of the judiciary to emergency circumstances. As regards handling civil law matters, in some countries, courts were given general recommendations to hold oral hearings only to the extent absolutely necessary for the proper administration of justice, and citizens were recommended to personally approach local courts only in urgent cases (e.g. Austria); in others, the use of modern means of communication with the court was recommended (Belgium); some countries designated on-call judges for civil cases who were able to take decisions in individual cases on the basis of an assessment of the case and level of urgency (Bosnia and Herzegovina), while in others, operation was confined to “critical” cases, as assessed by each court of first instance, taking into account its own capacities as well (Denmark). In some countries, a single taxative list of civil law matters that could be handled in courts was established, while other legal matters could be handled by means of remote oral hearings (Bulgaria). Some countries recommended that trials involving the parties’ physical presence be confined to urgent cases, with the possibility of handling cases by means of modern technologies, with the proviso that the decision on the use of such technologies could only be made by the adjudicating judge (Finland). See: Management of the judiciary – compilation of comments and comments by country, CEPEJ. Available at: www.coe.int/en/web/cepej/compilation-comments.

[8] Analiza sudske prakse – Postupanje sudova po predlogu za oslobađanje od plaćanja sudskih troškova u parničnoj materiji (Analysis of case law – Courts’ practices in handling motions to grant exemption from court fees in civil proceedings), Beograd: Svetska banka i Multidonatorski fond za podršku sektoru pravosuđa, YUCOM, 2018. p. 2. Available here.

[9] Funkcionalna analiza pravosuđa u Srbiji (Functional analysis of the judiciary in Serbia), Multidonatorski fond za podršku sektoru pravosuđa u Srbiji, Beograd, 2014, p. 25. Available here.

[10] Petrušić, N. Oslobođenje od prethodnog plaćanja troškova postupka u kontekstu prava na delotvoran pristup pravdi (Exemption from advance payment of costs of proceedings in the context of the right to effective access to justice), Bilten Apelacionog suda u Nišu. Niš, Apelacioni sud u Nišu, 2018, pp. 105-124.

[11] Data available at: linku.

(The text was originally published as the Introduction to the 62nd Social Inclusion and Poverty Reduction Newsletter.)