We call on the MPs not to adopt the proposed Amendments to the Law on Administrative Disputes because they are contrary to the Constitution and international standards, and it will have the most effect on the poor.
Those amendments provide that the citizens pay for the errors of the state administration by bearing the costs of the proceedings, even when the court confirms that their rights have been violated.
This decision is contrary to the Constitution and a number of international standards. It restricts the right of access to court, and the means used are not proportionate to any legitimate goal, it violates the right to equality before the law guaranteed by the Constitution, as well as the provision guaranteeing that no one shall suffer harmful consequences due to addressing a state authority or organization which exercises public powers.
The decision from the Draft imposes a disproportionate burden on citizens to bear all costs, regardless of success in the proceedings or dispute, even when their rights have been repeatedly violated by an authority.
This will undoubtedly deter citizens, especially the most vulnerable groups of the population, from initiating proceedings and disputes for the protection of their rights. This is especially true because practice shows that the Administrative Court almost never judges on merits, but determines the illegality of the acts and sends them back for a new decision, often several times. In those cases, the costs of citizens increase with each new cycle.
This decision restricts citizens’ right to access the court, which is contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In accordance with Article 6 of the Convention, a party shall have access to a court also in relation to compensation and reimbursement of costs caused by the other party, in this case the state.
Administrative disputes are undeniably disputes that are legally complex and require the engagement of experts – lawyers. Amendments to the law stipulate that these costs will not be reimbursed to citizens, even when the court confirms that their rights have been violated. Thus, access to court is restricted, especially for citizens who do not have legal knowledge, or the financial means to bear the costs of a lawyer themselves.
Any restriction on access to justice must have a legitimate aim and the means used must be proportionate to that aim (Tinnelly & Sons Ltd. and Others; McElduff and Others vs. United Kingdom (1998)). In the specific case, there was no legitimate goal, and the citizens were obliged to bear an “excessive burden”, which violates the fair balance, and therefore violates the parties’ right to property, guaranteed by Article 58 of the Constitution and Article 1 of Protocol no. 1 of the European Convention. In other words, the party that has already been damaged by the unlawful administrative act of the authority, suffers additional damage because it bears the costs of the administrative dispute. This grossly violates the principle of proportionality, because the party that wins a dispute against the government is forced to bear an excessive and disproportionate burden because it initiated such a procedure.
Finally, this decision is also contrary to Article 57 of the Constitution, according to which no one shall suffer harmful consequences for addressing a state authority or organization that exercises public powers. In this case, citizens who justifiably file a complaint with the Administrative Court suffer harmful consequences because the costs are borne by them, even though it is established that the act they are contesting is illegal, i.e. that the complaint is well-founded.
Because of all this, we call on the Members of Parliament not to support the amendments to this law unless they are in line with international standards.
MANS
