With the proposal of amendments to the Law on Civil Procedure which stipulate that in small claims the court will not award the costs to the party that wins a claim if they are disproportionate to the amount of the claim, the Government of Montenegro makes another impermissible pressure on all those who intend to sue the state for the damage caused to them by the illegal work of government officials. Such draft amendments constitute a brutal violation of fundamental human rights by the executive power and a direct incitement to illegal work.
The reason for these amendments are numerous court proceedings against the state because employees are constantly denied their labour rights. These procedures and the costs incurred by them are caused by the illegal activities of government officials, so the Government now tries to put the costs of such illegal work on the same persons whose rights it has been violating for years.
Therefore, we invite the state administration union to react in order to protect the rights of employees and protect employees in the state administration from the attempt of the Government to completely transfer the costs of its illegal work to those who already suffer the consequences of it. We also urge MPs of the Parliament of Montenegro to no longer serve as a mean of the executive authority in the implementation of solutions that are contrary to the Constitution, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and brutally violate the rights of citizens who try to find their protection in court.
In an attempt to mislead the public and the legislative authority to accept this decision, the Government groundlessly refers to international regulations because in the reasoning of its proposal it falsely states that this is stipulated in the Regulation on establishing a European Small Claims Procedure. However, this Regulation applies only to cross-border cases and was adopted with the intent to speed up the procedure and reduce costs. In addition, Article 2 of this Regulation clearly states that it shall not apply to the liability of the State for acts and omissions in the exercise of State authority, and the Government proposes this amendment precisely to free the state from the costs of illegal work. This Regulation also stipulates that it shall not apply to matters concerning employment law, while the Government proposes amendments to the law precisely because of labour disputes where the state pays costs.
Charging the parties winning a claim with the costs of the proceedings, in particular in claims against the State, cannot be justified by a legitimate public interest, since in such case, a party is required to bear “excessive burden” in the public interest, in which way the fair balance is disturbed, thereby violating the right to property of the parties, guaranteed by Article 58 of the Constitution and Article 1 of Protocol No. 1. to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In this way, the right of citizens to access to court is severely restricted, which is contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Civil proceedings are, as a rule, legally complex and require the engagement of professional persons – lawyers for representation in proceedings. This engagement imposes costs of the proceedings to the parties which, according to the Government’s proposal, are presented to the parties a priori, regardless of the outcome of the proceedings.
The Government’s proposal is also contrary to Article 57 of the Constitution of Montenegro, according to which no one can suffer adverse consequences due to addressing a state authority or organization that exercises public authority. In this case, citizens whose complaints for damage caused by a state authority are grounded suffer adverse consequences because they are charged with costs, despite it is established that the complaint has been grounded.
Instead of determining the liability of its officials who violate civil servants’ rights with their illegal work and cause damage to them, and instead of taking measures for the state administration to act in a lawful manner, and in a manner that will not provide grounds for filing complaints against the state, the Government does everything to divert the citizens from intention to exercise their rights in court proceedings. At the same time, in this way, the Government additionally encourages state officials, who have previously violated the law and labour rights, to continue with such practice.
NGO MANS Legal representative:
Veselin Radulović, lawyer from Podgorica
