By Jelena Bajin, lawyer
Law Office Of Tomislav Šunjka, Novi Sad
The delivery of a new Civil Procedure Law, (‘the Law’) which entered into force on 1 February 2012, even though the last changes of the old Civil Procedure Law from 2004 were delivered in 2009, came from the need to speed up the proceedings before the courts, respect for the rights of the parties to the dispute, increasing of discipline of the parties during the process, and the realisation of greater legal certainty.
Also, it was necessary to prescribe or to harmonise actions in the process with the new substantive legal regulations, ie, the law on public notary, the law on enforcement procedure and security, recommendations of the Council of Europe, legal positions and standards which are applied in the judgments of the European Court of Human Rights and solutions of comparative law which are applied in this area of law.
Delivering a new law on enforcement and security proceeding (Official Gazette of RS, No 31/2011) and law on public notary (Official Gazette of RS, No 31/2011) was deemed to make an impact on the number of court proceedings and scope of work performed by the courts, and in that matter, on speed of the proceedings. The legislator’s intention was to do so, among adding other new institutes, by making possible for the private sector to execute what was by this time exclusively a state matter (possibility given to the creditor to hire a private independent enforcer in enforcement proceedings, possibility of verifying documents not before court, but before notaries, etc.). Legal ambient created with these two laws, which ambient required certain promptness in court matters and in connection with introducing possibility of the private sector to participate in state matters also created a need to review and modernise civil proceeding.
It is expected that the new Civil Procedure Law will enable cost-effective and fast proceedings before the courts, and along with that, the availability of legal protection and the realisation of rights in reasonable time limits to the parties in the dispute. Also, the intention of the legislator by making the changes to civil procedure was to contribute to legal safety of the subjects, especially legal entities and companies, which would create a better environment for economic investments in the country, which is sine qua non for the economic development of every country in transition.
Solutions of civil procedure law in the European Union were not directly incorporated in civil procedure in Serbia, but this was taken into consideration and discussed during the making of the Civil Procedure Law, and thus, the Civil Procedure Law is significantly closer to European legislation.
The principles of adversarial proceedings and of mandatory participation of the parties in the proceedings are emphasised throughout the Law.
The principle of trial is affirmed and emphasised since the parties dominate in creating the factual background for making the decision. The court, by law, does not collect the facts, it receives them from the parties and the basis for the decision-making is formed on the factual material that the parties have presented during the litigation. Evidence shall be presented on the motion of the parties, and the court still decides which evidence is to be presented. The court also has a role to play, although the range of investigative principles and the procedural powers of the court are narrowed. The court on its own initiative collects the facts and evidence only by exception. The court has the power to determine the facts that the parties have not raised and present evidence that the parties have not proposed only when it comes to inadmissible dispositions of the parties (and where special regulations are provided).
Instead of the principle of material truth, which in practice was widely misinterpreted, the Law formulates the principle of the collection of process materials as a necessary working method that ensures the legality of the decision. The principle of the collection of process materials is determined by the rules of the duty of the parties to present process material; to fully declare all facts that are important to resolve the dispute; the mandatory response to the claim of the opposing party; the care of the court to determine the proper state of affairs; that the court is not bound by the dispositive procedural actions which exceed the limits of freedom of disposition; that the court can raise questions; etc.
The court shall conduct the proceedings without delay in accordance with the predetermined time frame for taking civil action (hereinafter: the time frame) and with less cost. The provision about the time frame is a new provision provided by the current law. In former laws on civil procedure, this principle was formulated as the principle of procedural economy and efficiency principle. The current Law provides a specific rule on determining the time frame for the completion of the proceedings and sanctions for not applying such frame. In front of the judges is a new requirement that they, after the parties point out evidentiary motions, make a plan, assess how long will it take to obtain documents, other writings, and expertise and to carry out the proposed evidence. The length of the time frame will depend on the abundance of the evidence.
The court, ex officio, takes care of court jurisdiction during the entire process. It determines immediately upon receipt of the claim, based on the allegations in the claim and based on facts known to the court, whether it has the jurisdiction and in which composition.
When territorial jurisdiction is in question, the Law’s basic rule is one that the Roman law once established: actor sequitur forum rei (the competent court is the court where the respondent is domiciled).
The court shall, ex officio, within eight days of receiving the response to the claim, proclaim territorial incompetence if there exists exclusive territorial jurisdiction of another court.
The deadline of eight days is introduced by the current Law. With this deadline, the intention of the legislator is to speed up the process. The court practice has shown that former solutions, ie deciding on the territorial jurisdiction objection as the part of the final decision, were futile for the parties in dispute. Also, it made, more than often, a basis for an appeal for the decision, bearing in mind that the court did not decide about the territorial jurisdiction objections during the first instance proceedings.
Any natural or legal person can be the party in the proceedings.
Notwithstanding, the trial court may render a decision, which has the legal effect in certain litigation, to recognise the status of a party to other forms of association and organisation, if it determines that, given the subject matter, it meets the essential requirements for the acquisition of party skills, especially if it has assets upon which the enforcement procedure could be carried out.
According to the provisions of the current Law, parties may take actions in the proceedings in person or by a proxy who must be a lawyer. The obligation that a proxy has to be a lawyer was introduced by the legislator because it is expected that it will guarantee greater expertise in providing protection to the parties and that it will contribute to the efficiency of the proceedings. It also protects the legal profession from non- professionals and removes the obligation of the court to assess whether a person is illegally practising law and therefore not providing true representation. However, it has also denied other legal professionals, ie law school professors, former lawyers and judges and distinguished legal professionals to represent family members to the certain degree of kinship before the court, as is common in comparative law.
Written submissions are submitted exclusively outside the hearing and not later than 15 days prior to the hearing. By prescribing this deadline, the legislators’ intention was to prohibit the parties from submitting written submissions during the hearing and thus delay the process. The prescribed deadline will give enough time to the court to deliver the submission to the opposite party before the hearing is held.
If the deadlines are not specified by law, they are determined by the court considering the circumstances of the case, and the predetermined time frame. In this way, the court is obliged to take into consideration every aspect of the trial, including the predetermined time frame, and to take an active role in creating the process. This deadline speeds up the process, hence it is more cost-effective and the parties are provided with a trial within a reasonable time.
So far the jurisprudence identified significant problems related to the delivery of the action that slowed down the court. The legislature, in an attempt to improve the situation, offered some improvement and simplification of delivery where possible. Proper delivery is of utmost importance for the prevention of the misuse of procedural rights by the parties, deliberate or not. For example, parties may directly and promptly send the submissions and other documents to each other, provided that, along with a proof of delivery, parties submit such submissions to the court. This is a provision introduced by the current Law, with a goal to influence the speed of the process. The only limitation is that the submissions are not required to be personally delivered.
One of the most specific situations considering claims, and in accordance with the current Law, arises when a person intends to initiate litigation processes against the Republic of Serbia. These provisions were introduced by the current Law. In this case, the Law provides an obligation for the plaintiff to previously address the State Advocate with a proposal for a peaceful settlement of the dispute. By submitting a proposal for a peaceful settlement of the dispute any statute of limitation is extended for a period of 60 days.
If the State Advocate does not respond to the proposal within 60 days, it is considered that the proposal is not accepted, and the person who has submitted the proposal for a peaceful resolution of the dispute may file a claim to the competent court. Indeed, sanctions exist for failure to comply with this procedure. The court will dismiss the claim as inadmissible if the plaintiff did not submit a proposal for a peaceful settlement of the dispute, or if 60 days from the submission of the proposal did not pass.
Such provision of the current Law has already raised some questions. By interpretation of these provisions, legal theory has pointed out that the State has been given privileges when it’s in the position of the respondent. Also, in this way, the mandatory mediation has been introduced in the civil procedure, which is an oxymoron by its legal nature, since the institute of mediation has to be voluntary.
The Law provides the possibility for the parties to submit the written findings and opinion of an expert of the relevant profession. This solution is completely contrary to the former view that the findings of an expert who was hired by the party itself represent an a priori bias. Now the burden of proof on the parties and their dispositions is how to choose the experts and submit their findings. It seems that this will contribute to more professional and unbiased findings as the hired expert knows that another expert of the same profession will provide their own findings, and that their findings and their expertise will be put before the court.
The former law on civil procedure provided that the parties could, throughout the trial, present new facts and propose new evidence. The Law now prescribes that this must be done at the preliminary hearing or at the first hearing. In this way, the principle of trial within a reasonable time is promoted even more. It is stipulated that the parties may, in submissions or in subsequent sessions, until the conclusion of the hearing, present new facts and propose new evidence, if the court finds it credible that the party could not submit them, through no fault of their own, at the preliminary hearing, or at the first trial hearing, if the preliminary hearing was not held.
The Law gives definite form to the right to trial within a reasonable time, it accelerates the proceedings, and sharpens the procedural discipline. In the explanation of the Law it is stated that the Law is in close relation with the strategic goal of the Republic of Serbia to join the European Union and with a need to conduct an intensive, efficient and permanent reform in the area of incorporation of European standards into national legislation.