For modern community and dynamic economy, it is not enough anymore that the justice is just achievable, also it has to be „fast“. That is the basic motive behind the adoption of the new Law on the Protection of the Right to Trial within a Reasonable Time, especially bearing in mind the many years of court proceedings which are burdening the courts and keeping citizens in suspense.
Unlike the Law on Courts which until now – very superficially – regulated this matter, the new Law details the remedies that are protecting this right, and also the procedure which is to be applied.
All those who are waiting too long for a Court’s decision, including here all commercial entities with procedures pending before commercial courts, will be able to initiate proceedings for assessment of infringement of their right to trial within a reasonable time and all that without paying any additional fees.
The proceeding is initiated by submission of a complaint to the President of the Court who will demand from the trial judge to comment, i.e. to reason why the proceeding in question is taking too long. This raises the obvious question – what is the definition of “too long”? The Law prescribes that the estimate will be performed on a case to case basis taking into account the criteria of complexity of the case, its nature and importance. Also, the behavior of the parties will be taken into account, as the parties, due to their ignorance or other reason, often influence the course of the procedure.
If the President of the Court accepts the complaint as founded, he will then order to the trial judge to take specific procedural actions to expedite the proceeding and will give to the trial judge a short period for their execution. If he considers it necessary, the President of the Court is authorized to withdraw the case from the trial judge and appoint a different judge to the case. Bearing in mind that the High Judicial Council keeps evidence on all judges’ performance, any potential negative note in that sense will surely have an incentive to the judges’ behaviour in terms of duration of the trial.
Beside the right to a timely trial, which is the main interest protected by this Law, the interested parties are also provided with the right to fair compensation which of the right to compensation for non-pecuniary damages and which may be awarded in the range between 300 and 3000 euros depending on the type of infringement of their right, along with the right to publication of the Court’s decision noting the infringement of the right to trial within a reasonable time. Therefore, upon the adoption of their complaint, a party has the right to claim from Republic of Serbia with a term of one year its rights enumerated above. We should note that beside the non-pecuniary damage, a party is also in position to claim pecuniary damages which are the result of procrastination of the judicial proceeding.
Indemnities for infringement of right to trial within a reasonable time will be paid from the state budget, specifically from the segment of the budget dedicated to the operations of the courts. Additional pressure to judges lies also in the fact that the state has at its disposal the right to claim indemnification from the judges for the damages paid from the state budget. All these mechanisms should guarantee that the judges will put their best endeavours to conduct a timely trial.
However, the question remains whether the courts dispose with sufficient staff to respond to such challenges. Also, a justified fear lies in the possibility that judges will perform radical „cuts“ of procedures in order to avoid their own responsibility, which surely will not contribute to legal security and aspirations of achieving justice.
As it may be observed, the Law predicts very short terms in the process of protection of the right to trial within a reasonable time which is very important for many parties who are waiting for the court’s decision for many years. It also brings many good solutions which will, however, in practice greatly depend on the real capacities of the courts to process the existing workload at this time.
We believe that the new Law, which will come into force on January the 1th 2016, we may expect positive outcomes in terms of general acceleration of the procedure, which should in consequence result in a greater restoration of trust in the judiciary branch. It may therefore be concluded that Serbia obtained a legislative act, which could in perspective solve the problem decades-long court proceedings, but as with any other piece of legislation the question of consistency during its implementation will largely determine its success, as is the case after all with the success of any regulation.