Ombudsman claims that the draft State Tax Law “restricts access to justice”

The People’s Advocate Ceslav Panico recommends to the Parliament “to organize public debates on the draft State Tax Law and to allocate sufficient time for the discussion of this draft law both in Parliament and with civil society, in order to eliminate the causes and conditions that create premises for human rights violations and to prevent possible condemnations of the State by the ECtHR”, reads the Opinion of the People’s Advocate sent to the Parliament on Friday, January 6.

At the end of last year, on 29 December 2022, the Moldovan Parliament adopted in the first reading a new draft law on the state tax.

The draft raised concerns about respect for human rights

The Ombudsman considers that “it is incumbent on Parliament to regulate the right of access to a court in a manner appropriate to the requirements of Article 6 § 1 of the Convention, taking into account the particular financial situation of each applicant”.

“The draft law includes several regulations, which place a financial burden on participants in the proceedings and thus restrict access to justice.

In particular, this financial burden will be even more burdensome for vulnerable and socially and financially marginalised groups, who even then do not have access to sufficient and effective mechanisms or other possibilities to recover their violated rights” and “the fees must be affordable and proportionate to the financial situation of the person who appeals to the judicial system”, concludes the Ombudsman.

The Ombudsman recalls that the data of the study “Perceptions of Human Rights in the Republic of Moldova”, prepared by the Office of the People’s Advocate, reveals that the level of confidence in the provision of the right to a fair trial for different groups of the population remains quite low, and the burden of a mandatory fee will further affect this confidence.

“The draft law does not contain any rules regulating the situation of persons who benefit from state-guaranteed legal aid and who will be obliged to pay fees for actions/actions in the court process.

This is a major risk for vulnerable groups, potentially deprived of the possibility to benefit from the right of access to a court. At the same time, the law should provide for a clear mechanism of exemptions, reductions, deferrals or postponements for the payment of court fees in accordance with Articles 85-86 of the Code of Civil Procedure”, Ceslav Panico added.

In conclusion, the Ombudsman notes that “the right of access to justice imposes an obligation on the legislator to provide every person with every opportunity to access the court and to ensure the effectiveness of the right of access to justice by adopting an appropriate legislative framework. It is thus incumbent on Parliament to regulate the right of access to a court in a manner appropriate to the requirements of Article 6 § 1 of the Convention, taking into account the particular financial situation of each applicant”.

Among the problematic issues mentioned in the Ombudsman’s Opinion are: the imposition of stamp duty, which cannot be waived, deferred or postponed (Article 2(2)(b) of the Convention), the imposition of a right of appeal, the imposition of a right of appeal and the imposition of a right of appeal. (1); the introduction of a compulsory State fee for the hearing of witnesses, experts and specialists (point 1.25 of Annex 1); the introduction of a fee for applications for postponement of hearings (point 1.26 of Annex 1); for applications for recusal (point 1.27 of Annex 1), for transfer of the case (point 1.27 of Annex 1) and for the transfer of the case (point 1.27 of Annex 1). 1.28 of Annex No 1), for adjournment (item 1.29 of Annex No 1), for expediting the trial (item 1.32 of Annex No 1), for explanation of judgments/decisions (item 1.33 of Annex No 1); imposition of the State fee for other transactions and actions of legal significance (Article 3 para. (1) (m)); waiver of the exemption from the payment of the state fee for plaintiffs in actions arising from administrative disputes, in actions related to the violation of the right to petition.