By Decision No. U-I-60/20, dated 18 March 2021 (Official Gazette RS, No. 57/21), the Constitutional Court decided on the request of the Maribor Higher Court for a review of the constitutionality of the regulation in the Mental Health Act which determines that an individual (i.e. a patient) who has filed a motion to be discharged from a psychiatric hospital or social care institution, either by him- or herself or through an attorney, shall bear the costs of the discharge proceedings if the motion is dismissed.

The Constitutional Court reviewed the challenged regulation from the perspective of the right to judicial protection and the principle of equality before the law. It follows from constitutional case law that the right to judicial protection determined by the first paragraph of Article 23 of the Constitution does not merely ensure formal access to the courts, but also the right to effective judicial protection, which entails that the state must ensure everyone the opportunity to effectively exercise this right, irrespective of his or her financial circumstances and obstacles. This right prohibits the legislature from enacting insurmountable financial obstacles to the actual and effective exercise thereof.

The Constitutional Court stressed that the costs of discharge proceedings that must eventually be borne by an unsuccessful applicant are always advanced by the court, and the court also advances the funds for the applicant’s mandatory representation by an attorney. Therefore, the affected individual’s inability or unwillingness to pay these costs cannot prevent the court from deciding on the merits regarding the admissibility of the individual’s further confinement in a psychiatric hospital or social care institution. Since the court also advances the funds for the individual’s mandatory representation by an attorney, there is no risk that the individual would remain without qualified legal aid in discharge proceedings due to his or her failure to pay for such. In addition, the Constitutional Court stressed that, on the basis of the Free Legal Aid Act, the costs of providing legal aid to socially disadvantaged persons are covered from the state budget and such persons are exempt from paying the costs of court proceedings.

The Constitutional Court therefore deemed that, in the part that refers to a motion for discharge filed by an individual or his or her attorney, the challenged regulation does not interfere with the individual’s human right to judicial protection, but merely entails a manner of the exercise of this right. Pursuant to the established constitutional case law, the manner of the exercise of a human right is consistent with the Constitution already if it is not unreasonable. The Constitutional Court substantiated its assessment that the challenged regulation is reasonable primarily with the position that a regulation that ultimately requires the state to bear the costs of proceedings initiated upon an individual’s unsuccessful motion for discharge in all instances could create an incentive for filing multiple consecutive motions for discharge in manifestly unfounded cases. It held that the challenged regulation is not inconsistent with the first paragraph of Article 23 of the Constitution.

The Constitutional Court dismissed the applicant’s allegations regarding the inconsistency of the challenged regulation with the principle of equality before the law determined by the second paragraph of Article 14 of the Constitution due to the fact that the legislature based the equal treatment of essentially different positions on reasonable grounds that were objectively related to the subject matter regulated. The legislature namely applied the principle that parties shall cover the costs of proceedings according to their success in proceedings with regard to both the first group of individuals, i.e. close relatives and – in instances of minors or individuals who are unable to safeguard their rights and interests themselves – statutory representatives who are adversely affected by the rules on the costs of proceedings if they lodged an unsuccessful motion for the admission of an individual to a psychiatric hospital, as well as the second group of individuals, i.e. individuals who, either by themselves or through an attorney, lodged an unsuccessful motion for discharge. In so doing, the legislature pursued a reasonable (and essentially the same) purpose with regard to both groups.