Institute for Citizens Rights criticizes new court fees and fines

Baku/25.06.21/Turan:  According to the information spread by the Milli Majlis, the bills on amendments to the Law “On State Duty” and amendments to the “Code of Civil Procedure” will be discussed in the first reading at the plenary session of the Milli Majlis on June 25, 2021. Assuming that it would create problems for providing the right to fair trial the Institute for Citizens Rights (ICR) criticizes the following amendments envisaged in these bills at the current stage. The brief summary of these amendments is as follows:

- According to the amendment to Article 8 of the Law on “State Duty”, the amount of state duties envisaged for filing a lawsuit at a court is increased;

- According to the amendment to Article 174 of the Code of Civil Procedure, a judge hearing a case will have the power to fine a party, his/her representative, or his/her lawyer who has filed manifestly unfounded motions or complaints or obstructed the proceedings up to 500 manats on the basis of discretion authority. 

Regarding these amendments, it should be noted that these changes worsen the already difficult situation of residents of the Republic of Azerbaijan (citizens, stateless persons, and foreigners living in the country) to access to court, and create a deterrent effect on the effective implementation of the right to representation in court.

First of all, it should be emphasized that the material well-being of the population in Azerbaijan is incompatible with the increase of state duties in the manner prescribed by this bill. The concept of state duty is one of the limitations put on the right of access to court, and its reasonable implementation is a Europe-wide standard. However, the level of material well-being of the population should be taken into consideration when determining the rates of state duties and their differentiation. Otherwise (when without taking the level of material well-being of the population into consideration), state duties will become one of the unfounded obstacles to the right of access to court. Given that access to court is the beginning of the fair trial, failure to provide access to court will mean the complete elimination of the right to fair trial or become a heavy burden on the low-income and even the middle-income population.

It should be noted that most of the claims in practice are claims from AZN 1000 to AZN 20000 or unvalued claims. It is planned to set the state fee for unvalued claims at AZN 100. Although the increase is not significant for claims valued at AZN 1000 to AZN 10000, the increase is heavy for claims between AZN 10000 and AZN 20000 (AZN 120). 

Let us note that the average monthly income of average statistical workers in Azerbaijan varies from 343 to 707 manats. Given that court cases also include the costs of the attorney's order and issuing a letter of warrant to the attorney (this amount is about 150 manats for the first-instance court), besides the attorney's fee must be paid, in this case, the increase in state fees is incompatible with the financial welfare of the majority of the population. The government has set a very high amount for the unvalued claims. It also creates an additional burden on the population in the amount provided for claims valued at 1000 to 10000 manats and claims valued at 10000 to 20000 manats. It should be taken into account that most of the court claims that concerned overhelming part of the population is included to this area.

Based on the above-mentioned, it is possible to determine that the currently determined amounts of state duties are incompatible with the material well-being of the population in the context of Azerbaijan.

Another amendment is the risk of a fine of up to 500 manats for a party or his/her representative or attorney. It should be noted that according to the law, such a fine can be imposed by a judge on the basis of discretionary authority in the case of manifestly unfounded motions or complaints, or obstruction of the proceedings. It must be noted that this provision contradicts the principle of legal certainty. The European Court of Human Rights has repeatedly found violations of the principle of legal certainty and abuse of discretionary authority by the judges in Azerbaijan.  

It should be noted that the income level of attorneys in Azerbaijan is not very high. The risk of a fine of up to 500 manats in this regard creates a chilling effect on their activities. It must be considered that the current draft has not defined the specific criteria for “manifestly unfoundedness”, as well as the framework for “obstruction of the proceeding”. Moreover, such criteria and frameworks are not specified in court practice. In this case, there may be cases of abuse of this provision by the judges due to the legitimate use of advocacy. Given that, earlier, the courts filed groundless complaints against the attorneys for their legitimate activities to the Bar Association. At the moment, this provision can be abused against attorneys. 

Taking these circumstances into account, either the amount of the fine should be set at a reasonable level or the criteria for the concepts (manifestly unfoundedness and obstruction of proceeding) specified in the new amendment should be determined more specifically and clearly. 

As a result, the bills planned to be discussed in the plenary session of the Milli Majlis are serious hurdles to the right to fair trial, including access to court and the right to be represented in court.

It should also be taken into consideration that these bills are submitted to the plenary session of the Milli Majlis without prior public discussion though the population is interested. And, this contradicts the principle of procedural justice. 

Based on the above-mentioned, we consider that:

- These draft laws (amendments to the Law on State Duty and the Code of Civil Procedure) should be eliminated from the plenary session of the Milli Majlis and postponed for public discussion purposes;

- In order to determine the fair rates of state duty, relevant scientific/economic research should be conducted, and the duty rates should be calculated in accordance with the specifics, number of cases, and financial situations of the population;

- The amount of court fines should be determined at a lower and more reasonable level, and the criteria for the implementation of these fines should be specified clearer and more concretely.-0-