What Are the Effects of the Amendments to the Law on Protection of the Right to a Trial within a Reasonable Time?

The new Law on Amendments to the Law on protection of the right to a trial within a reasonable time established the competence of the Constitutional Court to decide on the violation of the right to a trial within a reasonable time in bankruptcy and enforcement proceedings conducted for the purpose of settling claims in which bankrupt, or enforcement debtor is a company with majority social or state capital.

In the above-mentioned proceedings, the Constitutional Court will decide whether there has been a violation of the right to a trial within a reasonable time or the right to compensation for material and non-material damage, in a single procedure based on a constitutional complaint which replaces the party's obligation to use different legal remedies in order to obtain the right to compensation for material and non-material damage which occurred as a result of the violation of the right to a trial within a reasonable time.

The reason for this amendment is embodied in the fact that the European Court of Human Rights in numerous judgments (for example, Kačapor and other applicants v. Serbia, Marinković v. Serbia, Ferizović v. Serbia) stated that the constitutional appeal in this group of cases was legally effective remedy of protecting the right to a trial within a reasonable time, as well as the right to property.

In all other court proceedings, a party who believes that his right to a trial within a reasonable time has been violated, will be obliged to use the same legal remedies that were available before the passing of the aforementioned Law, namely:

1) Filing a complaint in order to speed up the procedure to the acting court
2) Filing an appeal to the acting court if the appeal is rejected, i.e., if it is not decided within two months from the day of receipt
3) In the case of acceptance of the objection or appeal, the party has the right to file a lawsuit for compensation of non-material damage caused by the violation of the right to a trial within a reasonable time
4) In the case of acceptance of the objection or appeal, the party has the right to file a lawsuit for compensation for material damage caused by the violation of the right to a trial within a reasonable time

In the case of point 3), which concerns compensation for non-material damages, the party has the right to monetary compensation in the amount of 300.00 euros to 3,000.00 euros, depending on the complexity of the trial case, the actions of the competent court and the party during the procedure and the importance of the trial case according to party.

In the case of point 4), which concerns compensation for material damages, the party has the right to compensation for all damages suffered as a result of the violation of the right to a trial within a reasonable time, while he is obliged to prove the basis and amount of damages according to the rules of the law of obligations.

With regard to other important changes and the protection of the right to a trial within a reasonable time in proceedings other than the above-mentioned exceptions, the doubt regarding the obligation of the party's attorney to submit a special power of attorney in proceedings for the protection of the right to a trial within a reasonable time has been expressly removed and it has been established that: Attorney of the party, who is authorized to perform all actions in the proceedings whose acceleration is requested does not need a special power of attorney to file an objection, i.e. if the party's attorney is authorized to perform only certain actions in the proceedings which do not include the filing of appeals for the protection of the right to a trial within a reasonable time, he/she is obliged to submit a special power of attorney for the filing of his appeal together with the appeal.

This legal solution represents the implementation of the position of the Supreme Court of the Republic of Serbia, expressed in the judgment Rev 568/2019 of 18 April 2019.

Due to doubts in practice, it has been explicitly stated that the party whose objection has been accepted is entitled to the reimbursement of costs of the proceedings based on the objection, as well as that the appeal may be filed even if President of the Court, in the decision accepting the objection and finding a violation of the right to a trial within a reasonable time, has not set a deadline for taking procedural measures that effectively expedite the proceedings.

The above amendments entered into force on 4 November 2023. Any questions related to this topic may be addressed directly to the author, attorney at law Teodora Veruović, via e-mail at [email protected].

TSG Advokati Beograd

Teodora Veruovic

Law on the Protection of the Right to a Trial within a Reasonable Time