Ustavnost člana 395 Zakona o parničnom postupku Federacije Bosne i Hercegovine
Constitutionality of the Article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina

Author(s): Harun Išerić
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Civil Law, Human Rights and Humanitarian Law, Public Law
Published by: Fondacija Centar za javno pravo
Keywords: article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina; decision of constitutional courts; lawyers and public attorneys; right of access to the court and right to the property;
Summary/Abstract: Paper discusses constitutionality of the article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina which proscribes that provisions on expenses shall apply to the parties represented by the Public Attorney's Office. In such cases, the costs of the litigation shall include the amount that could be granted to the party as the remuneration for attorney. First part of the paper is devoted to the comparative solutions on this issue in Croatia, Serbia and Montenegro. Special attention is paid to the decision of constitutional courts on constitutionality of similar legal provisions in these countries. In second part of the paper it is discussed whether similarity and differences between lawyers and public attorneys provide arguments for constitutionality of such legal provision. Third part is dedicated to the compatibility of disputed provision with human rights, more precisely with right of access to the court and right to the property. That is done through four questions test: whether there is interference with these rights; was the interference conducted in accordance with the law; does the interference further a legitimate aim; is the interference necessary in a democratic society. It is concluded that there are more arguments in favour of the constitutionality of the article 395. In second hand, absence of the protective measures which could provide court with the discretion to exempt parties from paying remuneration to the public attorney could be potential argument of its unconstitutionality.

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