Civil Procedure Code at Bosnia and Herzegovina
The Civil Procedure Code in Bosnia and Herzegovina is designed to regulate the legal process for resolving civil disputes within the country’s judicial system. Bosnia and Herzegovina operates under a civil law system, and its civil procedural rules are influenced by European legal traditions, particularly those of former Yugoslavia, as well as EU standards.
Bosnia and Herzegovina is a federal country with a complex legal structure consisting of multiple entities with their own legal systems, namely Federation of Bosnia and Herzegovina (FBiH), the Republic of Srpska (RS), and Brčko District. Each of these entities has its own set of procedural laws, but generally, the Civil Procedure Code of Bosnia and Herzegovina applies at the state level and provides a unified framework for civil litigation.
1. Court System and Jurisdiction
District Courts: The District Courts handle most civil cases at the lower level. These courts typically hear disputes related to contracts, torts, family law, and other private matters.
Cantonal Courts (FBiH): In the Federation of Bosnia and Herzegovina, certain cases are also handled by Cantonal Courts. These courts are situated in larger cities and serve as appellate bodies for district courts.
Republic of Srpska Courts: In the Republic of Srpska, the judicial system includes Basic Courts (for lower-level cases) and District Courts (for more significant matters or appeals).
High Courts and Supreme Courts: In both entities, higher-level courts, such as High Courts and Supreme Courts, have appellate jurisdiction and hear appeals from lower courts. The Supreme Court of Bosnia and Herzegovina also serves as the highest appellate authority in the country for civil cases.
Brčko District: This is a self-governing district with its own court system, although it follows many of the same rules as the Federation and Republic of Srpska.
2. Commencement of Civil Proceedings
Claim (Tužba): Civil proceedings begin when the plaintiff files a claim (tuzba) with the court. The claim must include:
The names of the parties involved.
A description of the facts and legal grounds for the dispute.
The relief or remedy sought by the plaintiff (e.g., monetary compensation, injunction, etc.).
Jurisdiction: The court where the case is filed must have proper jurisdiction. Usually, this is determined by the defendant's place of residence or the location where the event giving rise to the dispute occurred.
3. Defendant’s Response
Answer to the Claim (Odgovor na tužbu): Upon receiving the claim, the defendant must respond by filing an answer (odgovor na tužbu) within a specific period, typically 15 to 30 days, depending on the court's rules and the complexity of the case.
The response must admit or deny the allegations, and the defendant may also submit a counterclaim (protutužba) against the plaintiff if they have their own claims arising out of the same facts.
4. Pre-Trial Procedures
Preliminary Hearing: The court may schedule a preliminary hearing to review the case and determine the issues in dispute. This hearing may also provide an opportunity to set the schedule for the case and discuss any potential settlement or alternative dispute resolution (ADR).
Mediation and ADR: Courts in Bosnia and Herzegovina encourage the use of mediation and other ADR methods to resolve civil disputes before they proceed to full trial. The parties can agree to mediation, or the court may suggest it.
5. Discovery and Evidence
Evidence Exchange: Both parties are required to exchange evidence prior to the trial. The exchange can include documents, witness lists, and expert reports.
Expert Witnesses: In more complex cases, the court may appoint an expert to provide specialized knowledge or opinions on specific issues (e.g., accounting, engineering, etc.).
Inspection and Investigation: The court has the authority to order the inspection of evidence or conduct investigations if the facts are unclear or disputed.
6. Trial Process
Trial: If the case is not settled through mediation or pre-trial procedures, it proceeds to trial. In Bosnia and Herzegovina, trials are typically bench trials (decided by a judge), though there can be jury trials in some specific cases. The court evaluates the evidence presented, listens to the arguments of both parties, and makes findings of fact.
Burden of Proof: The burden of proof lies with the plaintiff, who must prove the claims made in their civil case. In civil proceedings, the standard of proof is generally based on the preponderance of evidence, meaning that the claimant must prove that their version of events is more likely true than the defendant's.
7. Judgment
Judgment (Presuda): After considering all the evidence and arguments, the court will render a judgment. The decision typically includes a ruling on liability and the relief granted, such as damages, injunctions, or other remedies.
Types of Remedies: The court may order remedies such as:
Damages: Compensation for harm or losses.
Injunctions: Orders requiring the defendant to act or refrain from acting.
Declaratory Judgment: A statement of legal rights or status of the parties.
8. Appeals Process
Appeal: Parties who are dissatisfied with the judgment can appeal to a higher court. The appeal must usually be filed within 15 to 30 days from the judgment's issuance.
Appellate Court Review: The appellate court examines the case for legal errors, procedural mistakes, or misinterpretation of the facts. The appellate court can either uphold, modify, or reverse the lower court's decision.
Final Appeal: The highest court, such as the Supreme Court of Bosnia and Herzegovina, may hear further appeals on specific legal issues, especially if the case involves a significant interpretation of law.
9. Enforcement of Judgment
Execution of Judgment: If the losing party fails to comply with the court’s judgment, the prevailing party may request the enforcement of the judgment through the court. The court may issue a writ of execution (izvršni nalog) that allows for the seizure of property, bank accounts, or wages to satisfy the judgment.
Bailiffs: Enforcement is carried out by bailiffs (court officers responsible for executing court orders). The bailiff has the authority to seize and auction assets to satisfy the debt.
10. Costs and Legal Aid
Court Costs: The losing party is generally required to pay the court costs of the prevailing party, though the court may reduce or modify this depending on the circumstances of the case.
Legal Aid: Legal aid is available for individuals who cannot afford legal representation. Legal aid helps ensure that everyone has access to justice, regardless of financial status.
11. Special Procedural Rules
Family Law: Family law cases, including divorce, child custody, and inheritance, are subject to specific rules. These matters often prioritize the welfare of children and family relations, and courts encourage mediation in these types of cases.
Commercial Disputes: Commercial and business-related disputes are handled by the courts, but special provisions may apply to issues like bankruptcy or intellectual property. In certain cases, there may be specific courts or divisions to expedite these matters.
12. Conclusion
The Civil Procedure Code of Bosnia and Herzegovina provides a structured framework for resolving civil disputes in the country. The code outlines a process from the filing of claims to the enforcement of judgments, with mechanisms for appeals, mediation, and legal aid. The civil procedure system emphasizes the role of judges, the importance of evidence, and the opportunity for parties to resolve disputes through settlement or alternative dispute resolution methods. It also ensures that parties can access justice regardless of their financial means and provides clear rules for enforcing judgments and awarding costs.
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