LAWON PROTECTION OF THE RIGHT TO A TRIAL WITHIN A REASONABLE TIME("Off. Herald of RS", No. 40/2015) |
Subject and Purpose of the Law
Article 1
This Law regulates the right to a trial within a reasonable time.
The purpose of this Law is to provide judicial protection of the right to trial within a reasonable time and thus to prevent the occurrence of the violation of the right to trial within a reasonable time.
Judicial protection of the right to trial within a reasonable time includes the investigation conducted by the public prosecutor in the criminal proceeding.
Holders of the Right to a Trial within a Reasonable Time
Article 2
The following persons are entitled to the right to a trial within a reasonable time: every party in court proceeding, including the enforcement proceeding, every participant pursuant to the law governing non-contentious proceeding, while the following participant in criminal proceeding: the injured party, private plaintiff and injured party, only if they claimed damages in criminal proceeding (hereinafter: the party).
Public prosecutor as a party in the criminal proceeding is not entitled to right to a trial within a reasonable time.
Legal remedies for the Protection of Right to trial within a Reasonable Time
Article 3
Legal remedies for the protection of the right to a trial within a reasonable time are:
1) Objection for accelerating the proceeding (hereinafter: the objection);
2) Appeal;
3) Claim for just satisfaction.
The party does not pay the court fees in the proceeding for protection of the right to trial within a reasonable time. They are urgent and have priority in deciding.
Criteria for Assessment of Reasonable Duration of Trial
Article 4
When deciding on the legal remedies used for protection of the right to a trial within a reasonable time, all circumstances of the trial are taken into account, primarily the complexity of the factual and legal issues, overall duration of the proceeding and conduct of the court, public prosecutor’s office, or other state authority, the nature and type of the subject of trial or investigation, the importance of the subject of the trial or investigation for the party, the conduct of the parties during the proceeding, in particular the respect of procedural rights and obligations, compliance with the order of settling cases and statutory time periods for scheduling sessions and main hearing, and drafting of decisions.
Article 5
Objection and appeal may be filed before the proceeding is completed.
A writ on objection and appeal shall not affect the factual and legal issues that are the merits of the trial or investigation.
The writ that sustains or overrules the objection or appeal shall contain detailed reasons.
2. Objection and the Contents of the Objection
Article 6
Proceeding for protection of the right to a trial within a reasonable time starts by filing an objection.
Objection contains the following mandatory elements:
1) Personal or business name of the party, its place of permanent or temporary residence, or headquarters;
2) Personal or business name of the parties’ representative or proxy, their place of permanent or temporary residence, or headquarters;
3) Name of the court conducting the proceeding or before which the proceeding is conducted, as well as the name of the public prosecutor's office conducting the investigation;
4) Reference number of the court case or the public prosecutor’s case;
5) Duration of the proceeding, including the duration of investigation conducted by the public prosecutor;
6) Information on the merits of the trial suggesting that the court is unnecessarily late with the decision;
7) Information about the subject of the investigation suggesting that the public prosecutor is delaying the investigation;
8) Signature of the party or representative or proxy of the party.
Filing Objection and Objection Proceeding
Article 7
A party files an objection to the court conducting the proceeding or to the court before which the proceeding is being conducted, if it considers that the public prosecutor has violated its rights.
Objection proceeding is conducted by the president of the court, who also decides on the objection. In annual work assignment, he may additionally appoint one or several judges to conduct the proceeding and decide on the objection.
Oral hearing is not held, and the law governing non-contentious proceedings applies mutatis mutandis to other issues.
President of the court shall decide on the objection within the term of two months from the day of receipt of the objection.
Deciding on the Objection without Examination Procedure
Article 8
President of the court dismisses or overrules the objection without examination procedure, or conducts examination procedure.
Objection is dismissed if it cannot be processed due to absence of a mandatory element, if the objection has been filed by an unauthorized person or if the objection is premature. Appeal is not allowed against the decision on dismissal.
Objection is overruled without examination procedure if, given the duration of the proceeding stated in the objection, it is clearly devoid of merit.
Article 9
Examination procedure commences when the president of the court requests from a judge, or chair of a panel (hereinafter: the judge), or from a public prosecutor, to submit a report within a period of 15 days or less in the case of a proceeding determined by a separate law as urgent.
The report contains statement on the course of the proceeding over time and proposed deadline in which the proceeding may be completed.
President of the court may request delivery of case files if, given the contents of the objection, he considers that they should be examined.
Deciding on the Objection after Examination Procedure
Article 10
The president of the court examines the report and the case files and applies the criteria for assessing the duration of the trial within a reasonable time (Article 4).
Thereafter, a writ is issued to overrule or sustain the objection and to establish the violation of the right to a trial within a reasonable time.
The judge and the public prosecutor are not entitled to appeal against the writ sustaining the objection.
Article 11
In the writ on sustaining the objection and establishing the violation of the of the right to a trial within a reasonable time, the president of the court indicates to the judge or the public prosecutor the reasons why the rights of the party have been violated and instructs the judge to take procedural actions which efficiently accelerate the proceeding.
In the same writ, the president of the court determines the time period in which the judge shall take the instructed procedural actions, which may not be shorter than 15 days or longer than four months, and a reasonable time period in which the judge shall report on the actions taken.
Depending on the circumstances, especially if the procedure is urgent, the president of the court may determine a priority in deciding, and remove the case from present judge and assign it to another, if the party's right was violated due to the overload or prolonged absence of the judge.
Instructions to the Public Prosecutor conducting the Investigation
Article 12
The president of the court delivers to the directly higher ranking public prosecutor and the party, the report of the public prosecutor and the writ on sustaining the objection and establishing the violation of the right to trial within a reasonable time committed by the public prosecutor.
Within eight days from the receipt of the writ, the directly higher ranking public prosecutor shall issue a mandatory guidance instructing the public prosecutor which procedural actions to take in order to effectively accelerate the process. In the mandatory guideline he also determines the deadline in which the public prosecutor shall undertake the instructed procedural actions, which may not be shorter than 15 days or longer than four months, and a reasonable time period in which the public prosecutor shall report on the actions taken.
Mandatory guidance is delivered to the president of the court and the party.
Article 13
The party whose objection has been overruled, and which has not filed an appeal, may submit a new objection after expiry of four months from the day of receipt of the writ on overruling the objection, the party whose objection has been overruled, and which has filed an appeal that has been overruled, after expiry of four months from the day of receipt of the decree rejecting the appeal, and the party whose objection has been sustained, and which has not filed an appeal - after expiry of five months from the day of receipt of the writ on sustaining the objection.
The party whose appeal has been adopted, and the party whose objection has been sustained, but the appeal rejected, may submit a new objection immediately after the expiry of the time period in which a judge or a public prosecutor was due to take effective procedural actions.
Restrictions to the right to submit a new objection do not apply to the proceeding in which the detention or provisional measure has been proposed or imposed, in the enforcement proceeding and in proceeding against minors.
A party whose objection or appeal has been dismissed may immediately submit a new objection.
3. Appeal and Grounds for Appeal
Article 14
A party is entitled to appeal if its objection has been overruled or if the president of the court failed to decide on it within the term of two months from the receipt of the objection.
An appeal may also be filed also if the objection was sustained, but a directly higher ranking public prosecutor failed to issue mandatory guidance within the term of eight days from the day of the receipt of the writ of the president of the court, and if the president of the court or a directly higher ranking prosecutor failed to instruct the judge or the public prosecutor to take procedural actions which effectively accelerate the proceeding, or if the judge or the public prosecutor failed to undertake the instructed procedural actions within the set deadline.
Inter alia, the appeal contains the same mandatory elements as the objection.
Article 15
If the president of the court failed to decide on the objection, the appeal is filed within the term of eight days from the day of expiry of a time period of two months from the day of the receipt of the objection.
If the objection is overruled, the appeal is filed within the term of eight days from the day the party received the writ on overruling the objection.
If the objection is sustained, and the party is entitled to appeal (Article 14, paragraph 2), the appeal is filed within the term of eight days:
1) As of the expiry of the time period in which a directly higher ranking prosecutor was due to issue mandatory guidance - if the appeal is filed because the directly higher ranking prosecutor failed to issue mandatory guidance;
2) As of the day of the receipt of the writ by the party - if the appeal is filed because the president of the court has failed to instruct the judge to take procedural actions which effectively accelerate the proceedings;
3) As of the day of the receipt of the mandatory guidance by the party - if the appeal is filed because the directly higher ranking prosecutor has failed to instruct the public prosecutor to take procedural actions which effectively accelerate the proceedings;
4) As of the expiry of the time period in which the judge or the public prosecutor were due to take the instructed procedural actions - if the appeal is filed because the judge or the public prosecutor have failed to take the instructed procedural actions within the set deadline.
Article 16
Appeal is submitted to the president of the court who decided on the objection.
He immediately delivers the case files to the president of the directly higher court. The president of the directly higher court conducts the appellate proceeding and renders a decision thereupon.
If the proceeding, in which a party considers that its right to a trial within a reasonable time has been violated, is conducted by the Supreme Court of Cassation, the appellate proceeding is conducted and decided on by a panel of three judges of the Supreme Court of Cassation.
The president of the directly higher court may, in the annual schedule, additionally appoint one or several judges to conduct the proceeding and decide on the appeals.
Deciding on the Appeal without Examination Procedure
Article 17
President of the directly higher court issues a writ to dismiss or overrule the appeal without examination procedure, or conducts the examination procedure.
Appeal is dismissed if it is incomplete, if it has been filed by an unauthorized person, if it is premature or late, if a person has waived the right to appeal or withdrew the appeal, or has no legal interest in the appeal. Appeal is incomplete if it is not signed or if it cannot be established from its contents which writ is being challenged.
Appeal is not permitted against a writ on dismissal of appeal.
Appeal is overruled without examination procedure if, given the duration of the proceeding stated in the appeal, it is clearly devoid of merit.
Deciding on the Appeal after Examination Procedure
Article 18
President of the directly higher court reviews the case files and applies the criteria for assessing the duration of the trial within a reasonable time (Article 4).
After that, he issues a decree to reject the appeal and confirm the first instance writ, adopt the appeal and reverse the first instance writ, adopt the appeal and decide on the objection, or adopt the appeal and deliver it to the competent public prosecutor (Article 19).
President of the directly higher court may, depending on the circumstances, and in particular if the procedure is urgent, establish the priority in deciding and then instruct the president of the court in which the objection has been filed to remove the judge from the case and assign it to another, if the party’s right has been violated due to the overload or prolonged absence of the judge.
If the appeal has been filed because the president of the court failed to decide on the objection, the president of the directly higher court when deciding on the objection has the same rights and obligations as the president of the court in which the objection was filed (Articles 8-11).
Instructions to the Public Prosecutor conducting the Investigation
Article 19
President of the directly higher court who reverses the first instance writ on rejecting the objection which has been filed because the party considers that its right has been violated by the public prosecutor, and establishes the violation, delivers his decision to the public prosecutor that is ranked directly higher than the prosecutor to whom the decision of the president of the court on sustaining the objection is delivered (Article 12, paragraph 1).
President of the directly higher court delivers to the same public prosecutor the appeal and the decree on adoption of the objection, because the president of the court failed to decide on the objection within the term of two months from the receipt of the objection, or because the public prosecutor failed to issue the mandatory guidance, or because the directly higher ranked public prosecutor failed to instruct the public prosecutor to take procedural actions which effectively accelerate the proceedings, or because the public prosecutor failed to take the instructed procedural actions within the set deadline.
Public prosecutor, to whom the president of the directly higher court has delivered its decree, has the same rights and obligations as the public prosecutor to whom the president of the court has delivered the writ on sustaining the objection (Article 12, paragraph 2).
Other Rules of Appellate Proceedings and Deadline for Ruling on the Appeal
Article 20
The appeal is not delivered for response, and the oral hearing is not held.
Law that governs non-contentious proceedings is applied mutatis mutandis to other issues.
President of the directly higher court shall decide on the appeal within the term of 30 days of the day of receipt of the appeal.
The competent public prosecutor (Article 19) shall issue the mandatory guidance within the term of eight days from the day when the president of the directly higher court has delivered him the decision on reversal or decision on adoption of the appeal.
Article 21
Appeal is not permitted against the decree on the appeal issued by the president of the directly higher court.
III. REQUEST FOR JUST SATISFACTION
1. Attaining the Right to Just Satisfaction
Article 22
The right to just satisfaction has a party whose objection is sustained and who did not file an appeal, then a party whose appeal has been rejected confirming the first instance writ on sustaining the objection and a party whose appeal has been adopted.
A party whose objection has been sustained and who has not filed an appeal, and a party whose appeal has been rejected confirming first instance writ on sustaining the objection, attains the right to just satisfaction upon expiry of the deadline in which the judge or the public prosecutor was due to undertake the instructed procedural actions, and a party whose appeal has been adopted - upon receipt of the decree on adoption of the appeal.
Article 23
Types of just satisfaction are:
1) Right to payment of monetary compensation for non-material damage caused by the violation of the party’s right to trial within a reasonable time (hereinafter: monetary compensation);
2) Right to publish a written statement of the State Attorney's Office (hereinafter: State Attorney's Office) establishing that the party’s right to a trial within a reasonable time has been violated;
3) Right to publish the judgment establishing that the party’s right to a trial within a reasonable time has been violated.
Liability of the Republic of Serbia for non-material damage caused by violation of the right to a trial within a reasonable time is strict.
When ruling on the just satisfaction, the State Attorney's Office and courts are bound by the writs rendered by the presidents of the courts in which the violation of the party’s right to a trial within a reasonable time has been established.
3. Attempt of Settlement with the State Attorney's Office and the Possibility to File Settlement Motion
Article 24
A party may file a motion for settlement with the State Attorney's Office within the term of six months from the day when it attained the right to just satisfaction.
The party states in the motion for settlement whether it requests the payment of the monetary compensation or issuing and publishing of a written statement of the State Attorney's Office establishing that its right to a trial within a reasonable time has been violated, or both.
The State Attorney's Office attempts to reach an agreement with the party within the term of two months from the day of receipt of the motion for settlement. If the agreement is reached, it concludes with the party an out-of-court settlement, representing an executable document.
In the process of settlement, the State Attorney's Office shall be limited by the amount of monetary compensation determined by this Law (Article 30, paragraph 1).
The party is free to withdraw at any time from the settlement attempt, in written form.
4. Publishing the Written Statement of the State Attorney’s Office Establishing the Violation of the Party’s Right
Article 25
After assessing whether just satisfaction for non-material damage is possible, and if only the written statement has been published establishing that the party’s right to a trial within a reasonable time has been violated, the State Attorney’s Office may propose to the party, instead of receiving payment of material compensation, to issue and publish a written statement establishing that the party’s right has been violated.
For more serious violations of the right to a trial within a reasonable time, the State Attorney's Office may, at the request of the party, issue and publish a written statement, as well as pay the monetary compensation to the party.
The written statement establishing that the party’s right to a trial within a reasonable time has been violated contains its personal or business name and permanent or temporary residence or headquarters, personal or business name of the party’s representative or proxy, and his permanent or temporary residence or headquarters, name of the court or the public prosecutor's office who has violated party's right to a trial within a reasonable time, the reference number of the court case, i.e. public prosecutor’s case, and the explicit statement establishing that the party’s right to a trial within a reasonable time has been violated.
The State Attorney's Office issues a written statement to the party in the form of the out-of-court settlement and publishes it in the "Official Herald of the Republic of Serbia".
5. Claim for Monetary Compensation and Preconditions for Civil Action
Article 26
A party may file a complaint against the Republic of Serbia seeking monetary compensation within the term of one year from the day when it attained the right to just satisfaction.
The complaint is not allowed during the attempt of settlement with the State Attorney's Office, or if the party and the State Attorney's Office concluded the settlement.
Article 27
Irrespective of the type and amount of the claim, the provisions governing the small value disputes of the law governing litigation proceedings is applied mutatis mutandis to the civil action proceedings before the court.
The court may not award the monetary compensation in the amount higher than the one determined by this Law (Article 30, paragraph 1).
Review is not allowed.
Subject Matter and Territorial Jurisdiction of Courts
Article 28
Basic court on whose territory the plaintiff has permanent or temporary residence, or headquarters has territorial jurisdiction to rule on the complaint.
If the plaintiff has no permanent or temporary residence, or headquarters in the Republic of Serbia, the basic court which has its seat in the place of the seat of the court that established the violation of the right to trial within a reasonable time has the territorial jurisdiction.
6. Judgment establishing the Violation of the Party’s Right
Article 29
For more serious violations of the right to a trial within a reasonable time, the court may, at the request of the party, render and publish the judgment establishing the violation of the party’s right, as well as award monetary compensation to such party.
Judgment establishing that the party’s right to a trial within a reasonable time has been violated contains the following information on the party: its personal or business name and permanent or temporary residence or headquarters, personal or business name of the party’s representative or proxy, and his permanent or temporary residence or headquarters, and the date of birth if stated by the party in the complaint.
Court, i.e. the State Attorney's Office that violated the party’s right publishes the final judgment of the court at their own expense in the "Official Herald of the Republic of Serbia".
7. Amount of the Monetary Compensation
Article 30
Monetary compensation is recognized in the amount ranging from EUR 300 to EUR 3,000 per case, in RSD equivalent value as of the payment day according to the median exchange rate of the National Bank of Serbia.
In determining the amount of monetary compensation, the State Attorney's Office and the court applies the criteria for the assessment of the duration of the trial within a reasonable time (Article 4), primarily the complexity of the subject of the trial or investigation, the conduct of the competent state authority and the party during the proceedings, and the importance of the subject of the trial or investigation for the party.
8. Claim for Compensation of Material Damages
Article 31
A party may file a complaint against the Republic of Serbia for compensation of material damages caused by the violation of the right to a trial within a reasonable time, within the term of one year from the day when it attained the right to just satisfaction.
In addition to the provisions of the law governing contracts and torts, the court also applies the criteria for assessing the duration of the trial within a reasonable time (Article 4).
The liability of the Republic of Serbia for material damages caused by the violation of the right to a trial within a reasonable time is strict.
9. Payment of the Monetary Compensation and Compensation of Material Damages
Article 32
Monetary compensation and the compensation of material damages are paid by the court or the public prosecutor's office which violated the right to trial within a reasonable time.
Article 33
The funds for payment of the monetary compensation and compensation for material damages is provided from the budget of the Republic of Serbia, from the funds that are intended to cover the current expenditures of courts and public prosecutor's offices, excluding the expenses for employees and the current maintenance of facilities and equipment.
IV. TRANSITIONAL AND FINAL PROVISIONS
Relation between the Law on Organization of Courts and this Law
Article 34
The proceeding for protection of the right to a trial within a reasonable time that has been initiated before the entry into force of this Law, in accordance with the Law on Organization of Courts ("Official Herald of RS", Nos. 116/08, 104/09, 101/10, 31/11 - other law, 78/11 - other law, 101/11 and 101/13) is continued under that law.
This Law applies to the court proceedings which are still pending at the time of initiation of the proceeding for protection of rights under this Law, if possible violation of the right to a trial within a reasonable time occurred before the start of application of the provisions of Articles 8a-8c of the Law on Organization of Courts, and the Constitutional Court has not ruled thereupon in the constitutional appeal proceeding.
This Law also applies to the court proceedings which are still pending at the time of initiation of the proceeding for protection of rights under this Law, if a possible violation of the right to a trial within a reasonable time occurred after the provisions of Articles 8a-8c of the Law on Organization of Courts ceased to be in force.
The Possibility of Settlement and Complaint if the Proceeding is conducted before the European Court of Human Rights
Article 35
Persons who filed an application to the European Court of Human Rights because they consider that their right to a trial within a reasonable time has been violated, and no ruling on the admissibility and merits thereof has been adopted, may submit to the State Attorney’s Office the motion for monetary compensation settlement within six months from the day of entry into force of this Law, stating in the motion for settlement the date of filing the application to the European Court of Human Rights and the reference number of the claim. Concluded settlement represents an executable document.
Instead of the motion for settlement or upon waiving the settlement attempt, the party may, within the term of one year from the day of entry into force of this Law, file a complaint for monetary compensation against the Republic of Serbia to the court which has jurisdiction under this Law. The complaint is not allowed if the party and the Public Attorney's Office conclude the settlement.
Irrespective of the type and amount of the claim, the provisions governing the small value disputes of the law governing litigation proceedings are applied mutatis mutandis in the court proceedings, as well as the provisions of this Law.
Repealing of Individual Provisions of other Laws
Article 36
On the day of entry into force of this Law the following provisions are repealed:
1) Art. 8a-8c of the Law on Organization of Courts ("Official Herald of RS, Nos. 116/08, 104/09, 101/10, 31/11 - other law, 78/11 - other law, 101/11 and 101/13);
2) Paragraph 2 of the Article 82 of the Law on the Constitutional Court ("Official Herald of RS, Nos. 109/07, 99/11 and 18/13 - CC).
Article 37
This Law enters into force on 1 January 2016.