Draft of the Amendments to the Civil Procedure Law – Will Justice be Available to Everyone?

In the past few days, the amendments to the Civil Procedure Law (CPL) are a hot topic, so it’s almost impossible that you haven’t heard or read at least something about this.

Astounding 137 Articles of the CPL were amended, which makes it seem as if a completely new law is being adopted rather than the old one being amended.

CPL is one of the fundamental laws which regulate the entire court procedure, from its start to its progress and finalization, and it also regulates the procedure of legal remedies.

The Serbian Ministry of Justice explains that the goal of the amendments to CPL is to increase the efficiency of proceedings. On the other hand, attorneys claim the opposite, stating that some of the proposed amendments are unconstitutional. The Serbian Bar Associations agree that this law is unacceptable and that it cannot be introduced to the parliament procedure.

Why are there so many differences in opinion all of a sudden, and which crucial changes are foreseen by the new CPL?

The first novelty which caused the public’s reaction is the amendment regarding the institute of exemption and exclusion of a judge.

In the situation when a judge is connected to a certain case, and they cannot work on that case (for example, one of the parties is the judge’s marital or extramarital partner), the institution of exempting the judge is applied, and the request for exclusion can be submitted by the party itself.

Also, the party in the proceeding which considers that there are circumstances that bring into question the judge’s impartiality has the right to submit a request for exclusion of the judge, which would be decided upon by the President of the Court. However, these new amendments to the CPL foresee novelties regarding this part.

What happens in case a request for exemption or exclusion is filed against a judge?

The new amendments to CPL foresee the right of the acting judge to continue working, even after the request for the judge’s exemption or exclusion is filed, in other words, it completely ignores the filed request for their exclusion, i.e., exemption. A special appeal against the decision on the judge’s ability to proceed with work on your case is not allowed.

Not only that, the new amendments to CPL foresee the right of the judge against whom the request for exemption and exclusion was filed to issue a fine to the party, the person who interfered, or their attorneys, if, according to their free judicial belief, the request for exclusion and exemption was without grounds.

The aim of introducing these amendments is probably to stop misuses, however, we are not certain that misuses of this institution happened often in practice, so that such extreme reaction was necessary.

The amendment to the CPL which has caused public experts to react the most since many consider it to be unconstitutional is the amendment that foresees that the application is considered to be withdrawn if the court fee was not paid in the legally prescribed time frame.

Besides, the draft of the new CPL foresees that all proceedings which were initiated and were not finalized until the day the new CPL entered into force, shall continue by the new law, i.e., all proceedings where the court fee was not paid yet (there are many where this is the case), shall automatically be considered withdrawn.

It is not disputable that the court fees have to be paid.

The problem here is the moment when this obligation starts, as well as the sanction if the obligation is not fulfilled within 8 days from the day of filing the application.

If this provision would find a way into the new CPL, what would this mean?

If you file a lawsuit, and you do not pay the fee within 8 days, the lawsuit shall be considered withdrawn.

The public believes that this provision is foreseen because of a number of litigation proceedings against banks that were initiated by citizens. Namely, the citizens’ lawsuits due to unconstitutional payment of expenses of loan processing, and payment by the National Mortgage Insurance Corporation (NMIC) have flooded the courts, especially the First and Third Basic Courts in Belgrade.

Will this provision demotivate citizens to file lawsuits against banks, although banks have evidently asked for payment of expenses of loan processing and compensation from NMIC.

The Law on Court Fees precisely regulates the matter of paying court fees. Then, why is it necessary to regulate this matter by CPL as well? The answer of the Ministry of Justice is that this amendment is being introduced in order to make the payment of court fees more efficient.

The Civil Procedure Law foresees the possibility of exemption from paying the court fees. The party which, according to their net worth, is not fit to pay the court fees can be exempted from payment. However, will the court decide on the application within the legal time frame of 8 days? Probably not. So, surely, it would be impossible for those parties who are not well-off to even try and exercise their rights before the court.

The new amendments to CPL foresee a special novelty related to reimbursement of the proceeding expenses. It foresees that if:

• the plaintiff who files two or more complaints which they could submit under one lawsuit has a right to reimbursement of expenses only for the litigation proceeding which they initiated first, under the condition that they have succeeded.
• The plaintiff will be obliged to compensate all expenses of the additional litigation proceedings irrespective of the outcome of the proceeding.

According to the CPL, the court already has the possibility to merge proceedings with the goal of mutual dispute. Should the plaintiff foresee in advance which complaints will they be able to pinpoint against the plaintiff? It is completely absurd to expect that someone can predict all complaints that they can pinpoint since the compensation will depend upon the outcome of the procedure which started first.

The party which wins in the dispute would actually take a Pyrrhic victory. This would lead to the situation that the party which wins in more than one litigation proceeding, has to pay the expenses of the proceeding to the opposing side, which would lose. In essence, this means that the party in the proceeding which succeeded to prove their right also pays the expenses of the proceeding for trying to prove their right through the court, since they have not foreseen all of the complaints when filing the first complaint.

It is clear that the reasoning for this provision is to demotivate the plaintiffs from an intentional division of complaints into several lawsuits if they could have been encompassed under one complaint. However, obligating the party which won in the proceeding to compensate the expenses of the proceeding to the party which lost, makes no sense whatsoever.

New amendments to the CPL follow the digitization trend, which is growing in modern society.

The new CPL foresees that certain individuals such as attorneys, public executioners, notaries, and even authorities of the Republic of Serbia, local self-governance, and the autonomous province would be obliged to file the submissions to the court only through electronic documents. For the electronic document, they would also be required to possess the electronic signature. The possibility of holding court hearings through video conferences is also being considered.

Of course, the digitization of the court is only one of the steps that the Republic of Serbia has taken in relation to the constant development of technologies and digitization, as it has already taken steps towards regulating the field of archiving. Foreigners are also able to obtain temporary residence permits electronically. There is also the possibility of opening a company remotely. There are also indications that online divorce might be possible.

Although it is indisputable that we have to modernize the judiciary system, there is fear that the digitization of the courts is possibly skipping a few necessary steps. In order for the provisions which are foreseen by the new CPL to be applicable, it is necessary that the courts be equipped technically and spatially, with trained employees.

The Constitution of the Republic of Serbia as the highest legal act of the Republic of Serbia prescribes that everyone has the right to an independent and impartial court making a decision on their rights.

It is an inalienable human right of citizens to ask to exercise their rights through the court. It should not be connected to the individual’s financial means.

Will the citizens be able to exercise their rights prescribed by the Constitution, even if they do not pay the court fees within 8 days?

It remains to be seen whether this draft on amendments to CPL will enter the parliament’s procedure.