Part of the book “Civil procedure amendments in Serbia ”
Author of wording prof. dr Vesna Rakic Vodinelic
1. History of rules of civil procedure from the XIX century up to date
• Civil Procedure Acts in Serbia in the XIX century
Parallel with the origins of judiciary, in Serbia in the XIX century, first civil litigation codes were enacted. The most important historical sources in the field of civil procedure were: Civil Procedure of 21. October 1853, Civil Procedure of 12. February 1860. and Civil Procedure (Judicial Procedure in Civil Litigation Code) of 20. February 1865.
Judicial Procedure in Civil Litigation Code applied until 1929, when appropriate Yugoslav Civil Procedure Act was enacted.
Besides these basic legal sources, some other sources have to be mentioned: Enforcement Act of 14. July 1898, which became the part of Judicial Procedure in Civil Litigation Code of 1865,; Amendments to Civil Procedure Act (the participation of an intervener in civil litigation) of 17. January 1900, as well as amendments of 26. January and 22. December 1901; Courts Organization Act of 20. February 1865. and Bankruptcy Proceedings Act of 17. March 1861.
Despite some significant differences between the above mentioned sources Civil Procedure Acts / of 1853, 1860 and 1865, had certain common characteristics, regarding legal institutes and principles:
• Actions were classified under the criteria of substantive law and not under the criteria of procedural law;
• Written form was more distinctive then in the XX century;
• The order of procedural motions of the parties to the procedure was strictly regulated by law;
• Procedural objections, as well as some of substantive objections, were limited in time, or could be taken until a certain moment in civil litigation only, which lead to their accumulation – majority of procedural objections had to be presented in the preparatory stage of the procedure;
• Legal estimation of evidence prevailed over free judicial estimation of evidence;
• Procedure had three instances – Court of cassation entertained jurisdiction for recourse under certain conditions.
• Civil Procedure Acts in Montenegro
Judicial Procedure in Civil Litigation Act for Principality Montenegro was enacted on November, 1 st, 1905, and entered into force on January, 1 st, 1906. The important source is Judicial Decisions Order of August, 5 th, 1905, and Civil Litigation Procedure at the Grand Court Order of May 1898.
• Yugoslav Civil Procedure Acts
After the first Yugoslav state had been established, in different parts of the territory (earlier under a variety of jurisdictions), for a very long time, different rules of civil procedure have been applied. In Serbia and Macedonia Serbian Judiciary Procedure in Civil Litigation Code of 1865 was in force; in Montenegro Judiciary Procedure in Civil litigation Act of 1905 was in force, in Slovenia, Istra and Dalmacija, Austrian Civil Procedure Act of 1895 has been applied, in Croatia – Temporary Civil Procedure for Hungary, Croatia and Slavonija of 1852, in Bosnia and Herzegovina - Civil Procedure Statute of 1883, in Vojvodina - Hungarian Civil Procedure Statute. In the 1929, with the enactment of Civil procedure Code, these rules were unified. This Code originated from almost literal implementation of Austrian Zivilprozessordnung of 1895. (mostly thanks to efforts of professor Bertold Ajzner), and in comparison with Serbian Civil Procedure Acts was more modern. It was based on a different understanding of principles of civil procedure, and – it is important to emphasize – it was a result of a relatively late implementation of Austrian Act, at the time when this act began to obsolete.
1929 Civil Procedure Code became the foundation for acts enacted in new, socialist Yugoslavia . The first new legal source was Acceleration of Civil Litigation Act of 1955. The first complete source was Civil Procedure Act of 1956. enacted contemporary with the Introduction Statute for Civil Procedure Act.
As it was already mentioned, Civil Procedure Act was partially based on Yugoslav Civil Procedure Code of 1929, and in accordance with that, on Austrian civil procedure, and at the same time, this Act was strongly influenced by the understanding of civil procedure typical for the time when it was enacted / it implemented some solutions from Criminal Procedure Act.
Considering the era and the political surrounding at the time of its enactment, Civil Procedure Act of 1956 is solid legal text.
When Constitution of Socialist Federal Republic of Yugoslavia was enacted in 1974, numerous acts were harmonized with it.
Civil Procedure Act of 1978 was enacted in the legal process. The major Part of this Act represents the compilation of Civil Procedure Act of 1956. The most important innovation introduced by Civil Procedure Act of 1978 were so called self-management courts into legislative system of that time. This Act also changed the understanding of courts of third instance. With numerous amendments that were not conceptual, Civil Procedure Act of 1978 is still in force.
1. History of civil judiciary, with the special emphasis on commercial judiciary
• The Middle Ages
After the early Middle Ages epoch - the period from disintegration of Western Roman empire, until schism of the western an the eastern Christian church in which tribal forms of rendering law prevailed over state forms – in the XI and the XII century Christian church became state church; reception of Roman law in its developed stage was carried out, and that law was adopted to new circumstances in the form of Canon (church) law.
Especially in the XI century interest in Roman law revived, thanks to discovery of The Digest (The Pandects), based on notes observations of Byzantine Czar Justinian.
In the history of Europe , including territories of current Balkans, as well as medieval Serbian state in the era of Nemanjic dynasty, the conjunction of secural Roman law and Canon law was designated as Roman-Canon law.
From the end of the XII century until the middle of the XIV century in ancient Serbian state, the principle of ruler's personal practicing of judiciary power maintained.
Judicial power, conceived as the sovereign state power, was executed relatively regularly from the beginning of the early Middle Ages, in all European counties of that period.
Later, magistrates became representatives of regular judicial power, instead of sovereigns. At the very beginning, magistrates were not professional judges. Nevertheless, it is important to emphasize that the term magistratus for a judge was accepted before the same term was accepted for high officials in the administrative branch. That leads to the conclusion that the judicial bureaucracy was established before the administrative bureaucracy. The categories of courts were not differentiated in a way they are currently differentiated – there was no difference between courts of record of general jurisdiction and specialized courts (except church courts). In accordance with this, there was no specialization in the scope of judicial profession in secural courts. However, a distant origin of commercial judiciary can be found in Serbia in the XIII century: the court of first instance for disputes between merchants from Serbia and from Dubrovnik was established. This court mainly resolved disputes that arose from commercial transactions. The main reason for establishing this court was the existence of numerous commercial contracts between Dubrovnik and Serbian state of that period.
Besides that, rulers used to give land by issuing charters to aristocrats, churches and monasteries, for performing commercial activities.
According to Dusan's Code, judicial procedure was not differentiated – there was one judicial proceeding both for civil and criminal cases, in regards to rules that we nowadays designate as principles, and regarding to form, evidence, and presentation of evidence.
After the Turkish conquest of Balkans (which began in the middle of the XIV century, and ended, mostly by the end of XV century), the organization of state power, including judicial power, fell under laws of Ottoman Empire . Only certain ritual elements of common law and common trial retained at the territory of current Serbia and parts of Montenegro .
• Origins of modern judiciary
At the time of the First Serbian uprising, the judicial function was performed by the military and the executive civil officials. In 1804. Karadjordje summoned chiefs to the assembly session with the order that every Duke should come together with “two to three head men” for the judicial election. According to L. Arsenijevic-Batalaka, first judges of cerain nahije were appointed. Praviteljstvujusci Sovjet was established in 1805, and at the same time it functioned as a court. Parallel with trials, Sovjet began with establishing courts, and convoked nahije to organize assemblies and to choose among themselves three most rational representatives. These representatives would serve as judges. It also anticipated that in every magistrate one priest should serve as a clerk, because in Serbia at that time there were few iterate persons. Urban and rural courts resolved so called small affairs. Sovjet had jurisdiction for crimes against the person (murder). This Decree also introduced the organization of judges in Serbia of that period, but the exact number of judges is unknown. It is also unknown whether all nahije were included in this organization plan. According to the notes of Vuk Karadzic (who was the president of court for a short period of time, during the rule of Milos Obrenovic), every court had a president, members, a secretary and a clerk. Some of them were paid for their function. Rodofinikin (Russian representative in Serbia ), alleges that in Serbia of that period, Rular Court , Duke's Court and District Court were established. Some towns had magistrates for resolving commercial disputes, and at the same time they performed police power.
After the reorganization of central state power in January 1811, judicial organization was changed. The only courts of first instance were rural courts and magistrates, and function of the Supreme court was performed by Great borough Court of Belgrade.
Despite of a certain formation of judicial organization, dukes, and Karadjordje himself, continued to interfere to the courts function, and exerted pressure on judges, even rendered and revoked judgments. Under the rule of Milos Obrenovic, the legislation systematization that could influence organization of courts and civil proceedings, was not carried out. In that time (in 1828), Vuk Karadzic came to Serbia again, and received an offer to translate particular acts to Serbian language. A general plan to adopt modern acts was made and it essentially consisted of translating selected foreign acts. These foreign acts would be edited and selected by the legislative commission in compliance with circumstances in Serbia in that period. Next year, Vuk Karadzic was appointed for the member of National court, and afterwards for the president of legislative commission.
There are some trails that Vuk Karadzic translated Napoleon's Civil Code, using commentaries on german and polish language. Despite of all efforts on the legislation advancement, and the position of judiciary clerks, civil proceedings were not improved much from the period of First Serbian uprising.
Judiciary in modern sense in Serbia , was created in the middle of the XIX century. Until 1837, judiciary was subordinated to administrative power, elemental and had two instances: courts of first instance were magistrates, and the role of Appellate Court was performed by Sovjet, with periodical appropriate role of Great borough court. Most of the magistrates were not educated lawyers, but respectable citizens. Sovjet, as the body of second instance had characteristics of an administrative body and not of a court. We could say that this was one primitive, and undifferentiated organization.
In 1837, Government Decree established Grand Court , with the function of an Appellate Court.
Grand Duke was competent do decide about extraordinary legal remedies. Thanks to the adoption of Serbian Civil Code in 1844 (this Code, in fact, was abbreviated and edited translation of Austrian Civil Code), judiciary in Serbia in the middle of the XIX century (1855) began to resemble modern judiciary organization in European states of that period. As the time went by, Grand Duke lost judiciary powers, and Supreme Court was established.
In 1865, Supreme Court, in accordance with the first modern Justices Organization Act in Serbia , became the first Court of cassation. The first Court of cassation had 15 judges and in rudimentary way, it was specialized; it had two civil and two criminal divisions. This court was under the influence of the French model of remedy proceedings. One of the most important innovations introduced by the Court Organization Act and Judiciary Procedure in Civil Litigation of 1865, was the establishment of Commercial court for the city of Belgrade . The principles of civil procedure applied to the proceedings at Commercial court. However, there are some origins of specialized procedural rules.
A group of rules that regulated special, abbreviated procedure for giving an account (pursued when a person obliged to give an account refuses to do that, or when a person refuses to accept an account), could be considered as specialized procedure. Procedural rules of mandatory proceeding (the issuance of mandate) for the payment of monetary debt on the basis of a note or some other document, have the same meaning of special procedure adapted for the purpose of resolving commercial disputes.
The Code of Petar I (its first part originates from 1789, and second part from 1803), founded the first principles of modern judicial proceedings in Montenegro , However, Court Organization Act was not enacted until 1902. Courts of first instance were so called Captain s courts. Courts of second instance were Regional courts and the Supreme court instance was Grand court. Grand court consisted of president and six judges and was divided at civil criminal division. Specialized commercial courts did not exist.
• Judiciary in Yugoslav state
After the First Would War and unification of south Slavic states, which partially arose from the disintegration of Austro-Hungarian Empire, in 1918, rapid creation and modernization of judiciary began. The process of harmonization of Yugoslav judiciary with the judicial systems of the leading European states of that period has also started. A few legal systems were unified; Serbian under the influence of French model regarding to the courts organization and the role of Court of cassation; Ottoman, that was in force at some parts of Yugoslav territory, Austrian and Hungarian in force in western parts of Yugoslav state of that time. In the concept of legal system the Austrian model prevailed, especially in the field of civil proceedings, and the organization of courts was changed and modernized. Nevertheless, the inheritance of different legal civilizations burdened the organization of courts, not only courts of original jurisdiction, but also of commercial courts. This inheritance resisted to the enactment of new statutes, and because of that resistance some rules in acts of court organization contained some compromises, barely understandable, even nowadays. Some of them were never applied completely. According to the Court Organization Act of 1929, only two commercial courts of first instance existed, with seats in Belgrade and Zagreb . At the rest of the country, in commercial matter district courts functioned as courts of record of general jurisdiction. After the Second World War a new legal system was introduced and constituted- socialist/communist legal system. According to the at that time dominant understanding of procedural law, all judicial procedures were of public nature, and the protection of individual subjective laws, especially those resulted from commerce, had to be put into effect through the strong state control.
Due to the nationalization of commercial associations, as well as real estates, especially land for construction, commercial law lost its previous meaning. In compliance with the appropriate model in Soviet Union , process of creating social companies – instead of former commercial associations, began in Yugoslavia Commercial life in its original sense disappeared. In that period of early communism, Main State Arbitration (an administrative body that regulated commercial customs – usances), in a specific communist surrounding was of tremendous importance for later organization of commercial courts. Main State Arbitration became Supreme Commercial Court at the beginning of 1950. Supreme Commercial Court had jurisdiction on the entire territory of Yugoslavia , and decided the appeals and extraordinary legal remedies against decisions of commercial courts of lower instances.
More intensive forms of commerce between domestic companies and between domestic and foreign commercial companies began after 1948. following the political division between the Yugoslav authorities and the authorities of Soviet Union, and especially after important influx of foreign credits from the Western Europe and the United States . The new Civil Procedure Act was enacted in 1955 and the new Court's Act was passed 1954. Besides courts of original jurisdiction, commercial courts (under the name of “economic courts”) were established for the entire territory of Yugoslav state. The Foreign-Trade Arbitration for resolving commercial disputes with foreign element was also founded. Civil Procedure Act regulated special procedural rules for proceedings at the economic courts. Internal organization of courts of original jurisdiction was changing periodically, since 1955 until the disintegration of Yugoslavia in 1991. The Constitution of former Socialist Federal Republic of Yugoslavia regulated that the legislative competence for courts organization was transferred from federation to member republics. Due to internal political tensions and changes in ideology periodical request for abolition of commercial courts appeared from time to time. Despite of that, commercial courts survived in all former Yugoslav republics.
• Establishment of international judicial independence standards
Despites significant differences in understanding and normative processing of judiciary, especially in the XVII and the XVIII century, among the leading states of that time – England , France and Prussia – first judicial independence postulates, which exceeded national characteristics, appeared. These postulates are going to be legally formulated in the XX century. In the legal circle of Continental Europe, judiciary in the XVIII century was established as bureaucracy organization under the domination of executive power. After the French revolution, an essential change appeared. Under the French legislators thought that judiciary power should not take over the role of a controller of political power, but the role of a controller of an abstract ideal of law. “Court of Cassation is not established for the purpose of applying law on different particular cases, or for the purpose of resolving the foundation of a dispute, but for the purpose of protection the forms and principles of the Constitution and laws from the attacks that could be executed by the courts. This court does not serve the citizens, but the protection of laws” – those were the words of Robespierre, stated at the Parliament, on May 25 th 1790. The ideal of a new regime was not to establish mutual limitation and control of power, but harmonious relation between judiciary power and executive power in comparison with legislative power, which was the only direct representative of national sovereignty. Throughout almost entire XIX century, the tension between judiciary power and executive power maintained. However, judiciary emancipated gradually. Ideologically and legally changed position of judiciary in the legal system in the communist countries originated from the establishment of so-called unity of state power. Together with the ideological domination of one-party parliament, without any formal elements of parliamentary democracy, this unity of state power, both in real and normative sense, had a decisive role in the loss of independence of judiciary and justices and created a bad habit of submissiveness.
Parallel with weakening of social role of judiciary in socialist countries, in states of western European democracies, after the Second World War, the idea of the right to independent trial and independent judge as the basic human right became stronger. This idea – that every citizen has the right to independent trial and independent judge – was codified in European Convention of Human Rights and Fundamental Freedoms and strengthened by the case law of the European Court of Human Rights. However, European Convention (like some other international acts related to guarantees and protection of human rights) would have remained just a register of highly sophisticated declarations had efficient mechanisms for its implementation and interpretation not been established by the Council of Europe.
The combination of national standards of democratic legal systems and international standards resulted in widely accepted formula for the independence of judiciary and judges.
The key elements of that formula are:
• Legal definition of the court as independent state institution;
• Establishment of courts and trials on the sources of law of the highest rank;
• Institutional independence of judges, meaning firstly, the independence from the political branches of state power, as well as from powerful individuals and social groups;
• Personal independence of judges (depending mostly of legal organization of the way of acquisition and loss of judicial office, as well as of permanence of judicial office, and which is achieved through the decisive role of judicial power in the process of acquisition and loss of judicial office);
• Rendering the decision on the merits within a reasonable period of time;
• Impartiality (that can be attained by the institution of judge s disqualification and rules of prevention of conflict of interest);
• Appearance of independence;
• The way of selecting the judge in the concrete legal case.
Impartiality of trials and judges became the part of independence concept for the last few decades, because of the requirement that judges should be free of any prejudice, including the one in connection with the parties in the proceeding in which he decides.
In the countries in transition (because today we should compare with them), standards of independency are nowadays mostly constitutional categories, conceived as the hardest internal guarantees of judiciary independence. We could say that in majority of these countries the above mentioned legal standards are accepted, at least in formal and normative form (but still far away from the real implementation).
In almost all of these states, the system of state power division is constitutionally established, and at least formally, judiciary power is equal with the rest non-professional, political branches of power. A good estimation could not be given for the practical application of this system.
According to Monitoring of EU Accession Process, unjustifiable influence of the executive branch on judiciary, judges and trials in the period until 1989 represented the greatest threat to the judicial independence. This influence reflected especially in the role of the Ministry of justice in the appointment, promotion and dismissing of judges. It is estimated that until 2001 only Hungary and Slovenia succeeded to prevent institutional influence of the Ministry of justice, not only in normative, but in real sense.
Judicial councils (or similar bodies) as the bodies of judicial power have been founded in all countries in transition, in order to allow the influence of judicial power on acquisition and loss of judicial function (except in Czech Republic ). These countries are: Bulgaria , Bosnia and Herzegovina , Croatia , Estonia , Macedonia , Hungary , Lithuania , Latvia , Poland , Romania , Slovakia , Slovenia and Serbia and Montenegro . Judiciary councils, as the institutions of judicial power, don't exist in all European countries. In countries outside of Europe the institution of judiciary council is not particularly spread.
For the effective application of the principle of independence of court and for the establishment of the rule of law, the existence, performance and typical competencies of judiciary councils are not legal or even political necessity. However, they have been established in times following great social turbulences – like the Second World War (when they were established in France and Italy), or the downfall of fascist regimes (when they appeared in Portugal and Spain), or the failure of communism (when they appeared in countries of Eastern, Middle and South-Eastern Europe). The main reason for the establishment of these councils was their positive influence on stimulus of judiciary independence.
In almost all countries in transition, the judicial function is permanent, with some exceptions.
These exceptions, however, don't violate the principle of independence, from the international standards standpoint.
The rules of judge's disqualification and of the prevention of conflict of interest have been seriously reviewed in almost all countries in transition, but not in our country.
The way of selecting the judge in the concrete case, as good practical test of normative establishment of the right to the independent judge, was not seriously elaborated in majority of countries in transition. And that is exactly the focal point of the human rights to the independent judge – the judge has to be selected independently of the characteristics of the legal matter in the particular case, and independently of his personality.
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